Original. To induce the Lender to enter into this Agreement, the Borrower and each Guarantor individually and collectively represent and warrant to the Lender as follows: (a) The Borrower and the Guarantors are corporations duly organized, validly existing, and in good standing under the Laws of the Commonwealth of Massachusetts; the Borrower and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A); each Subsidiary is a corporation duly organized, validly existing, and in good standing under the Laws of ---------------- its state of incorporation, all as set forth in Exhibit 5.01(A); the Borrower, the Guarantors and the Subsidiaries have the --------------- lawful power to own their properties and to engage in the businesses they conduct, and each is duly qualified and in good standing as a foreign corporation in the jurisdictions wherein the nature of the business transacted by it or property owned by it makes such qualification necessary; the states in which the Borrower and each Guarantor and Subsidiary are qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender in writing; the percentage of ownership --------------- of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as listed in Exhibit 5.01(A); the ---------------- addresses of all places of business of the Borrower and each Guarantor and Subsidiary are as set forth in Exhibit 5.01(A); ---------------- except for Laser Merger Sub, Inc. in connection with the Merger, no Borrower, Guarantor or Subsidiary has changed its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five (5) years and one (1) month prior to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); --------------- (b) No Borrower, Guarantor or Subsidiary is directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within the meaning of the Investment Company Act of 1940, as amended; (c) No Borrower, Guarantor or Subsidiary is in default with respect to any of its existing Indebtedness, and the making and performance of this Agreement, the Notes, and the Collateral Documents will not and did not (immediately or with the passage of time, the giving of notice, or both):
Appears in 1 contract
Original. To induce the Lender to enter into this Agreement, the Borrower represents and each Guarantor individually and collectively represent and warrant warrants to the Lender as follows:
(aA) The Borrower owns 100% of the outstanding capital stock of the Subsidiary Bank, and upon the merger of Borrower and the Guarantors Seller, which shall occur on the date hereof, the Borrower will own 100% of the outstanding capital stock of the Target Bank;
(B) Borrower and the Subsidiary Bank are corporations duly organized, validly existing, existing and in good standing under the Laws of the Commonwealth State of MassachusettsAlabama; the Borrower and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A); each Subsidiary is a corporation duly organized, validly existing, and in good standing under the Laws of ---------------- its state of incorporation, all as set forth in Exhibit 5.01(A); the Borrower, the Guarantors and the Subsidiaries Bank have the --------------- lawful power to own their properties and to engage in the businesses business they conduct, and each is are duly qualified and in good standing as a foreign corporation corporations in the jurisdictions wherein the nature of the business transacted by it them or property owned by it makes them make such qualification necessary; the states in which the Borrower and each Guarantor and the Subsidiary Bank are qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender in writingB; the percentage of ownership --------------- of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as listed in Exhibit 5.01(A); the ---------------- addresses of all Borrower’s and the Subsidiary Bank’s respective principal places of business of the Borrower and each Guarantor and Subsidiary are as set forth in Exhibit 5.01(A)B; ---------------- except for Laser Merger Sub, Inc. in connection with and neither Borrower nor the Merger, no Borrower, Guarantor or Subsidiary Bank has changed its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five (5) years and one (1) month prior to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------
(b) No Borrower, Guarantor or Subsidiary is directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within the meaning of the Investment Company Act of 1940, as amendedhereof;
(cC) No BorrowerAll the terms and conditions of the Merger Agreement, Guarantor or and all other necessary actions to effect the merger of the Seller with and into the Borrower and the merger of the Target Bank with and into the Subsidiary Bank have been satisfied and completed in all respects, except for the funding of the purchase price required to be paid to the Seller under the Merger Agreement, and the filing of such documents and instruments with such public officials as are necessary to effect the merger of the Target Bank with and into the Subsidiary Bank;
(D) Neither Borrower nor the Subsidiary Bank is in default with respect to any of its existing Indebtedness, or under any material lease, contract or commitment of any kind, and all parties (including Borrower and the Subsidiary Bank) to all such material leases, contracts and other commitments to which Borrower or the Subsidiary Bank is a party are in material compliance with the provisions of such leases, contracts and other commitments;
(E) The making and performance of this Agreement, the NotesNote, and the Collateral Documents will not and did not (immediately immediately, or with the passage of time, or with the giving of notice):
(1) Violate any provision of the articles of incorporation or bylaws of Borrower or the Subsidiary Bank, or both):violate any Laws or result in a default under any contract, agreement, or instrument to which Borrower or the Subsidiary Bank is a party or by which Borrower or the Subsidiary Bank or any of their respective properties are bound; or
(2) Result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the assets of Borrower or the Subsidiary Bank, except in favor of Lender;
(F) Borrower has the power and authority to enter into and perform this Agreement, the Note, and the Collateral Documents, and to incur the Obligations herein and therein provided for, and has taken all corporate action necessary to authorize the execution, delivery, and performance of this Agreement, the Note, and the Collateral Documents;
(G) This Agreement and the Collateral Documents are, and the Note when delivered will be, valid, binding, and enforceable in accordance with their respective terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws, and judicial decisions affecting the rights of creditors generally and by general principles of equity;
(H) There is no pending or, to Borrower’s knowledge, threatened order, notice, claim, litigation, proceeding or investigation against or affecting Borrower, the Subsidiary Bank, the Seller, or the Target Bank, whether or not covered by insurance, that would involve the payment of $10,000.00 or more if adversely determined;
(I) Borrower has good and marketable title to all of the Collateral, subject to no security interest, encumbrance or lien, or claim of any third person;
(J) Borrower’s and the Subsidiary Bank’s financial statements (including call reports, in the case of the Subsidiary Bank) furnished to Lender, including any schedules and notes pertaining thereto, have been prepared in accordance with Generally Accepted Accounting Principles consistently applied, and fully and fairly present the financial condition of Borrower at the dates thereof and the results of operations for the periods covered thereby, and there have been no material adverse changes in the consolidated financial condition or business of Borrower or the Subsidiary Bank, from September 30, 2015, to the date hereof;
(K) As at the date of this Agreement, neither Borrower nor the Subsidiary Bank has any material Indebtedness of any nature, including, but without limitation, liabilities for taxes and any interest or penalties relating thereto, except for Indebtedness of the Subsidiary Bank reflected in the September 30, 2015, call report of the Subsidiary Bank; Borrower does not know and has no reasonable ground to know of any basis for the assertion against it or the Subsidiary Bank as of December 31, 2015, of any material Indebtedness of any nature, except for the Indebtedness of the Subsidiary Bank reflected in the above referenced call report; and Borrower does not know and has no reasonable ground to know of any basis for the assertion against the Seller or the Target Bank as of December 31, 2015, of any material Indebtedness of any nature, except for Indebtedness of the Target Bank that is reflected in the September 30, 2015, call report of the Target Bank;
(L) As at the date of this Agreement (i) Borrower has no material liabilities, and except for Borrower’s ownership of the Subsidiary Bank, Borrower has no material assets; and (ii) to Borrower’s knowledge, the Seller has no material liabilities, and except for the Seller’s ownership of the Target Bank, and Seller has no material assets.
(M) Except as otherwise permitted herein, Borrower and the Subsidiary Bank have filed all federal, state and local tax returns and other reports they are required by Laws to file prior to the date hereof and which are material to the conduct of their business, have paid or caused to be paid all taxes, assessments and other governmental charges that are due and payable prior to the date hereof, and have made adequate provision for the payment of such taxes, assessments or other charges accruing but not yet payable; Borrower has no knowledge of any deficiency or additional assessment in a materially important amount in connection with any taxes, assessments or charges not provided for on its books or the books of the Subsidiary Bank, the Seller or the Target Bank;
(N) Neither Borrower nor the Subsidiary Bank, and to Borrower's knowledge, neither the Seller nor the Target Bank, is in material violation of any applicable Laws;
(O) No representation or warranty by Borrower or the Subsidiary Bank contained herein or in any certificate or other document furnished by Borrower or the Subsidiary Bank pursuant hereto contains any untrue statement of material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made;
(P) Each consent, approval or authorization of, or filing, registration or qualification with, any Person that is required to be obtained or effected by Borrower or the Subsidiary Bank in connection with the merger of the Seller with and into the Borrower, the merger of the Target Bank with and into the Subsidiary Bank, the execution and delivery of this Agreement, the Note, and the Collateral Documents, or the undertaking or performance of any obligation hereunder or thereunder, has been duly obtained or effected, except for the filing of such documents and instruments with such public officials as are necessary to effect the merger of the Target Bank with and into the Subsidiary Bank;
(Q) The Pledged Stock constitutes all of the issued and outstanding capital stock of the Resulting Bank. There are no outstanding warrants, options, rights or other commitments (including, but without limitation, convertible notes or securities), entitling any Person to purchase or otherwise acquire any shares of capital stock of the Subsidiary Bank or the Resulting Bank. The Pledged Stock does not constitute “Margin Stock” as defined in Federal Reserve Board Regulation U (12 C.F.R. §§ 221.1 et seq.);
(R) Borrower has not made any agreement or taken any action which may cause anyone to become entitled to a commission or finder’s fee as a result of the making of the Loan;
(S) Borrower does not maintain any “Defined Benefit Pension Plans”, as defined in ERISA; and
(T) The Subsidiary Bank’s retained earnings, as reported on Schedule RC of the Subsidiary Bank’s most recent quarterly call report, were $12,170,000, and the Target Bank’s retained earnings, as reported on Schedule RC of the Target Bank’s most recent quarterly call report were $9,756,000. Immediately following the merger of the Target Bank with and into the Subsidiary Bank, the retained earnings of the Resulting Bank are expected to be approximately $13,250,000 (it being acknowledged that all or substantially all of the Target Bank's retained earnings immediately prior to such merger will be included as additional paid-in capital, or surplus, of the Resulting Bank).
Appears in 1 contract
Original. To induce the Lender Bank to enter into this Agreement, the Borrower and each Guarantor individually and collectively Borrowers represent and warrant to the Lender Bank as follows:
(a) The Borrower and the Guarantors Borrowers are corporations duly organized, validly existing, and in good standing under the Laws of the Commonwealth State of Massachusetts; the Borrower South Carolina and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A); each Subsidiary is a corporation duly organized, validly existing, and in good standing under the Laws of ---------------- its state of incorporation, all as set forth in Exhibit 5.01(A); the Borrower, the Guarantors and the Subsidiaries have the --------------- lawful power to own their properties and to engage in the businesses they conduct, and each is are duly qualified and in good standing as a foreign corporation in the jurisdictions wherein the nature of the business transacted by it or property owned by it makes such qualification necessary; the states in which the Borrower and each Guarantor and Subsidiary are qualified to do business are set forth in Exhibit 5.01(A) each jurisdiction where such qualification is necessary. All jurisdictions where MCF or otherwise disclosed to the Lender in writing; the percentage of ownership --------------- any of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as Borrowers are qualified or should be qualified are listed in Exhibit 5.01(A); the ---------------- addresses of all places of business of the Borrower and each Guarantor and Subsidiary are as set forth in Exhibit 5.01(A); ---------------- except for Laser Merger Sub, Inc. in connection with the Merger, no Borrower, Guarantor or Subsidiary has changed its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five (5on Schedule 6-1(a) years and one (1) month prior attached to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------this Agreement.
(b) No Borrower, Guarantor or Subsidiary is directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within the meaning None of the Investment Company Act of 1940, as amended;
(c) No Borrower, Guarantor or Subsidiary Borrowers is in default with respect to any of its existing Indebtedness, and the making and or performance of this Agreement, the Notes, and the Collateral Documents Agreement will not and did not (immediately or immediately, with the passage of time, the time or giving of notice, or both):): (i) violate the provisions of the charter or bylaws of any of the Borrowers, or violate any Laws, or result in a default under any contract, agreement, or instrument to which any of the Borrowers are a party or by which any of the Borrowers or any of their property are bound, except in connection with indebtedness satisfied with the proceeds of the Loan; or (ii) result in the creation or imposition of any security interest in, or lien or encumbrance upon, any assets of any of the Borrowers, except as same may be in favor of Bank.
(c) Borrowers have full right, power, and authority to enter into and perform the Loan Documents, and to incur the Obligations herein and therein provided for, and have taken all corporate action and obtained all consents necessary to authorize the execution, delivery, and performance thereof.
(d) This Agreement and the remainder of the Loan Documents, when delivered, will be valid, binding, and enforceable against Borrowers, as applicable, in accordance with their respective terms.
(e) Except as set forth in a written disclosure statement delivered to the Bank within ten (10) business days prior to the execution of this Agreement, no litigation, proceeding, arbitration, or investigation is in process, pending or threatened against any of the Borrowers which, if determined adversely to such Borrowers, would have a material adverse effect on the business, properties, or financial condition of Borrowers.
(f) Borrowers have good and marketable title to all of their assets, subject to no security interest, encumbrance or lien, or any other claim except: (i) such claims specifically disclosed in the application for the Loans, (ii) such claims created by this Agreement in favor of Bank, (iii) liens for real property taxes not yet due and payable and (iv) the Permitted Encumbrances.
(g) Borrowers' financial statements provided to Bank for the fiscal year ended December 31, 1995, and the interim financial statements for the ten (10) months ended October 31, 1996, have been prepared in accordance with GAAP and fairly reflect the financial condition of Borrowers and the results of its operations as of the dates and for the periods stated therein. No material adverse changes have since occurred or are threatened.
(h) As of the date hereof, Borrowers, in the aggregate, have no material Indebtedness in excess of $100,000.00 of any nature, including without limitation liabilities for taxes and interest or penalties relating thereto, except: (i) to the extent reflected and reserved against in the most recent financial statements prior to the date hereof; (ii) as created in this Agreement, or (iii) as listed on Schedule 6-1(h) attached hereto and incorporated herein by reference.
(i) Borrowers have filed all federal, state, and local tax returns and reports it is required by all Laws (including the Fair Labor Standards Act) to file prior to the date of this Agreement and have paid or caused to be paid all taxes, interest and penalties due and payable therein. Borrowers have not agreed to an extension, of the period within which the Internal Revenue Service may audit Borrowers tax returns.
(j) All information and representations made and any information or documents submitted in connection with the application for the Loans were true, complete and correct as of the date of such submission and (except for financial statement information provided with reference to a specific date) are true, complete and correct as of the date hereof unless otherwise modified or altered by subsequent written information and representations made to Bank.
(k) No representation or warranty by any of the Borrowers contained herein or in any certificate or other document furnished by or on behalf of Borrowers pursuant hereto contains any untrue statement of material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made.
(l) No Reportable Event has occurred during the 5-year period prior to the Closing Date with respect to any Plan, any of the Borrower and each Plan has complied and all material specifications with applicable provisions of ERISA and the Code. The present value of all accrued benefits under each Single Employer Plan maintained by any of the Borrowers (based on those assumptions used to fund the Plans) did not, as of the last annual evaluation date prior to the date of this Agreement, exceed the value of the assets of such Plan allocable to such accrued benefits. The present value (determined using actuarial and other assumptions which are reasonable in respect of the benefits provided and the employees participating) of the liability of any of the Borrowers for post retirement benefits to be provided to their current and former employees under Plans which are welfare benefits (as defined in Section 3(1) of ERISA) equals or exceeds the assets under such Plans allocable to such benefits.
(m) The proceeds of the Loans shall be used by Borrowers in the ordinary course of Borrowers' and for the particular purposes set forth elsewhere in this Loan Agreement.
(n) Except as to the Star Fibers Property and to the extent disclosed to Bank in writing, the Properties do not contain, and have not previously contained, any Materials of Environmental Concern in amounts or concentrations which (i) constitute a violation of, or (ii) could be reasonably given rise to liability under Environmental Laws. Except as to the Star Fibers Property and to the extent disclosed to Bank in writing, the Properties and all operations of the Properties are in compliance, and have in the past two years been in material compliance and specifications with all applicable Environmental Laws, there is no contamination at, under or about the Properties (except as disclosed to Bank in writing), or violation of any Environmental Law with respect to the Properties which could interfere with the continued operation of the Properties or materially impair the fair salable value thereof. None of the Borrowers have not received any notice of violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Properties, nor do any of the Borrowers have knowledge or reason to believe that any such notice will be received or is being threatened except so far as such notice or threat notice or any aggregation thereof, does not involve a matter or matters that is or are reasonably likely to result in the payment by any of the Borrowers of a Material Environmental Amount. To the best knowledge of Borrowers, after reasonable investigation, Materials of Environmental Concern have not been transported or disposed of from the Properties in violation of, or in a manner or to a location which could reasonably give rise to liability under Environmental Laws, nor have any Materials of Environmental Concern have generated, treated, stored or disposed of at, on or under any of the Properties in violation of, or in a manner that could give rise to liability under, any applicable Environmental Laws except insofar as any such violation or liability is referred to above, or any aggregation thereof, is not reasonably likely to result in the payment by Borrowers of a Material Environmental Amount. No judicial proceeding or governmental or administrative action is pending, or, to the knowledge of Borrowers, threatened, under any Environmental Law to which Borrowers are or will be named as a party which respect to the Properties, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other administrative or judicial requirements outstanding under any Environmental Laws with respect to the Properties except insofar as such proceeding, action, decree, order or other requirement or any aggregation thereof is not reasonably likely to result in the payment of Material Environmental Amounts. There has been no release or threat of release of Materials of Environmental Concern at or from the Properties, or arising from or related to the operation of any of the Borrowers in connection with the Properties in violation of or in amounts or in a manner that could give rise to liability under Environmental Laws except insofar as such violation or liability referred to above, or any aggregation thereof, is not reasonably likely to result in the payment of Material Environmental Amounts. The representations contained in this Subsection 6.1(n) are subject to Materials of Environmental Concern or other matters related to Environmental Laws specifically disclosed in writing to Bank, including the environmental condition of the Star Fibers Property.
(o) Borrowers maintain with one or more financially sound and reputable insurance companies, with premiums at all times currently paid, insurance upon fixed assets and inventory, including public liability insurance, fire and all other risks insured against by extended coverage, fidelity bond coverage, business interruption insurance and all other insurance required by law, all in a form and amount required by law and customary to the respective nature of the businesses of Borrowers and Borrowers' properties, except in a case where failure to maintain such insurance will not have or potentially have an adverse effect on the Borrowers or any of Borrowers' properties or assets.
(p) All of the Properties and the use of the Properties shall comply and shall continue to comply in all material respects with all applicable Laws, including zoning resolutions, building codes, Environmental Laws (except as disclosed in writing to Bank), subdivision and other applicable laws, rules and regulations and are covered by existing valid certificates of occupancy and all those certificates and permits required by applicable laws, rules, regulations and ordinances or in connection with the use, occupancy and operation of the Properties. No material portion of any of the Properties has been damaged in any respect as a result of fire, explosion, accident, flood or other casualty. No condemnation or eminent domain proceeding has been commenced or to the knowledge of Borrowers are about to be commenced against any portion of the Properties. No notice of violation of any federal, state or local law or ordinance or order or requirement has been issued with respect to any Properties.
(q) Each of the Borrowers is solvent as defined or used in the Bankruptcy Act of the United States, as amended, and will continue to be solvent as defined or used in the Bankruptcy Act of the United States following the consummation of the transactions contemplated by this Agreement.
(r) Borrowers are in compliance with all applicable Laws, rules, regulations, and orders of all governmental authorities (federal, state, local or foreign, and including, without limitation, Environmental Laws, rules, regulations, and orders) a breach of which would materially and adversely affect any of the Borrowers' business, credit, operations, financial condition, or prospects.
(s) As of the date of this Agreement, the principal place of business and chief executive office of all of the Borrowers is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. Borrowers' additional place of business or places where assets of Borrowers are located are set forth on Schedule 6-1(s). The location of the principal places of business and chief executive offices of the Borrowers and the locations of any Collateral shall not be changed nor shall there be established additional places of business or additional locations where Collateral is stored, kept or processed without Bank's prior written consent, and prior to making any such change or establishing such new location, Borrowers agree to execute any additional financing statements or other documents or notices required by Bank. As of the date of this Agreement, the books and records of Borrowers and all records and accounts are located and hereafter shall continue to be located at the principal place of business and chief executive office of Borrower.
(t) Business conducted by Borrowers has not been conducted by or under any corporate, trade or fictitious name other than those listed on Schedule 6-1(t) attached to this Agreement, and following the date of this Agreement, Borrower will not conduct their business under any trade or fictitious name other than the duly registered names listed on Schedule 6-1 (t) attached to this Agreement, except with the prior consent of Bank.
(u) As of the date of this Agreement, Borrowers have no investments in any Person, and is not engaged in any joint venture or partnership with any other Person.
(v) All representations and warranties contained in the Loan Documents are incorporated herein by reference and constitute a part hereof as fully as if the same were set forth herein.
Appears in 1 contract
Original. To induce the Lender Bank to enter into this Agreement, the Borrower represents and each Guarantor individually and collectively represent and warrant warrants to the Lender Bank as follows:
(aA) The Borrower and the Guarantors are corporations is a corporation duly organized, validly existing, existing and in good standing under the Laws of the Commonwealth of Massachusetts; the Borrower and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A); each Subsidiary is a corporation duly organized, validly existing, and in good standing under the Laws of ---------------- its state of incorporation, all as set forth in Exhibit 5.01(A)its incorporation or organization; it has the Borrower, the Guarantors and the Subsidiaries have the --------------- lawful power to own their its properties and to engage in the businesses they conductbusiness it conducts, and each is duly qualified and in good standing as a foreign corporation in the jurisdictions wherein where the nature of its business or the business transacted by it or location of property owned by it makes such qualification necessarynecessary and where the failure to so qualify would have a material adverse effect (in Bank's reasonable commercial discretion) upon the Borrower; the states in which the Borrower and each Guarantor and Subsidiary are is qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender in writingon EXHIBIT "D"; the percentage of ownership --------------- of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as listed in Exhibit 5.01(A); the ---------------- addresses of all places of business of the Borrower and each Guarantor and Subsidiary the addresses at which any of the Collateral is or shall be located are as set forth in Exhibit 5.01(A); ---------------- except for Laser Merger Sub, Inc. in connection with the Merger, no Borrower, Guarantor or Subsidiary has changed its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five (5) years and one (1) month prior to the date hereof except as set forth in Exhibit 5.01(A)EXHIBIT "C"; and all of the authorizedBorrower maintains its books and records relating to its Accounts, issuedReceivables, ---------------- Contract Rights, Instruments, Investment Property, and outstanding shares of capital stock of each Subsidiary are owned by the BorrowerGeneral Intangibles at its offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, a Guarantor or another Subsidiary▇▇▇▇▇▇▇▇ ▇▇, except as set forth in Exhibit 5.01(A); ---------------▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
(bB) No Borrower, Guarantor or Subsidiary Borrower is directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within the meaning of the Investment Company Act of 1940, as amended;
(c) No Borrower, Guarantor or Subsidiary is not in default with respect to any of its existing Indebtedness, and the making and performance .
(C) The execution of this Agreement, the NotesRevolving Credit Promissory Note and the other Loan Documents, and the Collateral Documents performance of the transactions contemplated hereunder and thereunder will not and did not (immediately or or, with the passage of time, the giving of notice, or both):): (i) violate the charter or bylaw provisions of Borrower, or, to the best of Borrower's knowledge, violate any Laws or result in a default under any contract, agreement or instrument to which Borrower is a party or by which Borrower or its property is bound; or (ii) result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the assets of Borrower, except in favor of Bank, and except where such violation, conflict, breach, default, termination or lien would not have a material adverse effect (in Bank's reasonable commercial discretion) upon the Borrower.
(D) Borrower has the power and authority to enter into and perform its obligations under this Agreement, the Revolving Credit Promissory Note and the other Loan Documents, and has taken all corporate action necessary to authorize the execution, delivery and performance of this Agreement, the Revolving Credit Promissory Note and the Loan Documents.
(E) This Agreement and the Loan Documents are, and the Revolving Credit Promissory Note and all other Loan Documents when executed and delivered will be, valid, binding and enforceable in accordance with their respective terms subject to enforcement of bankruptcy, insolvency, reorganization, fraudulent conveyance or other Laws limiting the enforcement of creditors' rights generally and to moratorium laws from time to time in effect and to limitations on equitable remedies.
(F) Except as otherwise permitted in this Agreement (in connection with Permitted Liens or otherwise), Borrower has filed all federal, state and local tax returns and other tax-related reports, unless contested in good faith by appropriate proceedings, it is required by Laws to file prior to the date of this Agreement and which are material to the conduct of its business; has paid or caused to be paid all taxes, assessments and other governmental charges that are due and payable prior to the date of this Agreement, and has made adequate provision for the payment of such taxes, assessments or other charges accruing but not yet payable; Borrower has no knowledge of any deficiency or additional assessment in connection with any taxes, assessments or charges not provided for on its books.
(G) All financial statements delivered to Bank have been prepared in accordance with GAAP. Such financial statements contain no material misstatement or omission and fairly present the financial condition, assets and liabilities of Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and the results of operations of Borrower and its Subsidiaries on a consolidated basis as of the respective dates thereof and for the respective periods then ended. Since the date of the most recent financial statement for Borrower provided to Bank, there has been no material adverse change in assets, liabilities, financial condition or prospects of Borrower or any Subsidiary or in the results of operations of Borrower or any Subsidiary, and neither Borrower nor any of its Subsidiaries has incurred any obligation or liability that materially and adversely affect its financial condition, business operations or properties, or has entered into any material contract not contemplated by this Agreement and not in the ordinary course of business consistent with past practice.
(H) Each consent, approval or authorization of, or filing, registration or qualification with, any Person required to be obtained or effected by Borrower in connection with the execution and delivery of this Agreement, the Revolving Credit Promissory Note and the other Loan Documents or the undertaking or performance of any Obligation has been duly obtained or effected.
(I) All Defined Benefit Pension Plans, if any, as defined in the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of Borrower meet, as of the date of this Agreement, the minimum funding standards of Section 302 of ERISA, and with respect to all Employee Benefit Plans, as defined in ERISA, of Borrower, no Reportable Event or Prohibited Transaction, as defined in ERISA, has occurred.
(J) Borrower has no Subsidiaries except as shown on attached EXHIBIT "E".
(K) All Inventory (i) is and shall be of good and merchantable quality, free from any and all defects and not obsolete except as noted in Borrower's periodic Inventory reports provided to Bank; (ii) is and shall be subject to internal controls and management procedures (including, but not limited to, a physical inventory) conducted by Borrower and satisfactory to Bank; and (iii) meets and shall meet all standards imposed by any governmental authority having jurisdiction over such Inventory, its use and/or sale. No Inventory (a) has been or shall be consigned without Bank's prior written consent; and (b) is or shall ever be stored with a bailee, warehouseman or similar party without Bank's prior written consent and in such event Borrower will, concurrently with delivery to such party, cause any such party to issue and deliver to Bank, in form acceptable to Bank, warehouse receipts in Bank's name evidencing the storage of such Inventory.
(L) There are no material actions, suits, investigations or proceedings pending or, to the knowledge of Borrower, threatened against or affecting Borrower before any court or administrative officer or agency. Borrower is not in violation of or in default under any applicable Law, order, decree, writ or injunction, to which a default or failure to comply could have a material adverse effect (in Bank's reasonable commercial discretion), upon the Borrower.
(M) Borrower has good, indefeasible and merchantable title in fee simple (or its equivalent under applicable law) to, and ownership of, the assets reflected in its most recent financial statement delivered to Bank, and all of its other assets, free and clear of all liens, claims, security interests and encumbrances, except for the Permitted Liens and as shown on EXHIBIT "A".
(N) No dangerous, hazardous or toxic substances, pollutants, contaminants, chemicals, wastes or materials, within the meaning of any applicable Laws (collectively "Hazardous Substances") are unlawfully stored or located upon any premises owned, leased, controlled or used by Borrower or any of its Subsidiaries, and no part of any such premises, including the groundwater located thereon and thereunder, is presently contaminated by any such Hazardous Substance. All activities and operations of Borrower and its Subsidiaries meet in all material respects the requirements of all applicable environmental Laws. Borrower has never sent a Hazardous Substance to a site which, pursuant to any Law, (i) has been placed on the "National Priorities List" or "CERCLIS List" of hazardous wastes (or any similar state list) or (ii) is subject to a claim, an administrative order or other request to take removal or remedial action or to pay for the cost of cleaning up such a site. Borrower has timely filed all reports required to be filed, has acquired all necessary certificates, approvals and permits and has generated and maintained all required data, documentation and records under applicable environmental Laws.
(O) No representation or warranty by Borrower contained in this Agreement, the Loan Documents or in any other certificate or document furnished by Borrower pursuant to this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made.
(P) Borrower and each of its subsidiaries have duly complied in all material respects with, and the Collateral and their business operations and leaseholds are in compliance in all material respects with, the Laws, and there have been no material citations, notices or orders of noncompliance issued to Borrower or any of its subsidiaries under any of such Laws.
Appears in 1 contract
Original. To induce the Lender Bank to enter into this Agreement, the Borrower and each Guarantor individually and collectively Borrowers represent and warrant to the Lender Bank as follows:
(a) The Borrower and the Guarantors Borrowers are corporations duly organized, validly existing, and in good standing under the Laws of the Commonwealth State of Massachusetts; the Borrower South Carolina and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A); each Subsidiary is a corporation duly organized, validly existing, and in good standing under the Laws of ---------------- its state of incorporation, all as set forth in Exhibit 5.01(A); the Borrower, the Guarantors and the Subsidiaries have the --------------- lawful power to own their properties and to engage in the businesses they conduct, and each is are duly qualified and in good standing as a foreign corporation in the jurisdictions wherein the nature of the business transacted by it or property owned by it makes such qualification necessary; the states in which the Borrower and each Guarantor and Subsidiary are qualified to do business are set forth in Exhibit 5.01(A) each jurisdiction where such qualification is necessary. All jurisdictions where MCF or otherwise disclosed to the Lender in writing; the percentage of ownership --------------- any of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as Borrowers are qualified or should be qualified are listed in Exhibit 5.01(A); the ---------------- addresses of all places of business of the Borrower and each Guarantor and Subsidiary are as set forth in Exhibit 5.01(A); ---------------- except for Laser Merger Sub, Inc. in connection with the Merger, no Borrower, Guarantor or Subsidiary has changed its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five (5on Schedule 6-1(a) years and one (1) month prior attached to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------this Agreement.
(b) No Borrower, Guarantor or Subsidiary is directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within the meaning None of the Investment Company Act of 1940, as amended;
(c) No Borrower, Guarantor or Subsidiary Borrowers is in default with respect to any of its existing Indebtedness, and the making and or performance of this Agreement, the Notes, and the Collateral Documents Agreement will not and did not (immediately or immediately, with the passage of time, the time or giving of notice, or both):): (i) violate the provisions of the charter or bylaws of any of the Borrowers, or violate any Laws, or result in a default under any contract, agreement, or instrument to which any of the Borrowers are a party or by which any of the Borrowers or any of their property are bound, except in connection with indebtedness satisfied with the proceeds of the Loan; or (ii) result in the creation or imposition of any security interest in, or lien or encumbrance upon, any assets of any of the Borrowers, except as same may be in favor of Bank.
(c) Borrowers have full right, power, and authority to enter into and perform the Loan Documents, and to incur the Obligations herein and therein provided for, and have taken all corporate action and obtained all consents necessary to authorize the execution, delivery, and performance thereof.
(d) This Agreement and the remainder of the Loan Documents, when delivered, will be valid, binding, and enforceable against Borrowers, as applicable, in accordance with their respective terms.
(e) Except as set forth in a written disclosure statement delivered to the Bank within ten (10) business days prior to the execution of this Agreement, no litigation, proceeding, arbitration, or investigation is in process, pending or threatened against any of the Borrowers which, if determined adversely to such Borrowers, would have a material adverse effect on the business, properties, or financial condition of Borrowers.
(f) Borrowers have good and marketable title to all of their assets, subject to no security interest, encumbrance or lien, or any other claim except: (i) such claims specifically disclosed in the application for the Loans, (ii) such claims created by this Agreement in favor of Bank, (iii) liens for real property taxes not yet due and payable and (iv) the Permitted Encumbrances.
(g) Borrowers' financial statements provided to Bank for the fiscal year ended December 31, 1995, and the interim financial statements for the ten (10) months ended October 31, 1996, have been prepared in accordance with GAAP and fairly reflect the financial condition of Borrowers and the results of its operations as of the dates and for the periods stated therein. No material adverse changes have since occurred or are threatened. 118
(h) As of the date hereof, Borrowers, in the aggregate, have no material Indebtedness in excess of $100,000.00 of any nature, including without limitation liabilities for taxes and interest or penalties relating thereto, except: (i) to the extent reflected and reserved against in the most recent financial statements prior to the date hereof; (ii) as created in this Agreement, or (iii) as listed on Schedule 6-1(h) attached hereto and incorporated herein by reference.
(i) Borrowers have filed all federal, state, and local tax returns and reports it is required by all Laws (including the Fair Labor Standards Act) to file prior to the date of this Agreement and have paid or caused to be paid all taxes, interest and penalties due and payable therein. Borrowers have not agreed to an extension, of the period within which the Internal Revenue Service may audit Borrowers tax returns.
(j) All information and representations made and any information or documents submitted in connection with the application for the Loans were true, complete and correct as of the date of such submission and (except for financial statement information provided with reference to a specific date) are true, complete and correct as of the date hereof unless otherwise modified or altered by subsequent written information and representations made to Bank.
(k) No representation or warranty by any of the Borrowers contained herein or in any certificate or other document furnished by or on behalf of Borrowers pursuant hereto contains any untrue statement of material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made.
(l) No Reportable Event has occurred during the 5-year period prior to the Closing Date with respect to any Plan, any of the Borrower and each Plan has complied and all material specifications with applicable provisions of ERISA and the Code. The present value of all accrued benefits under each Single Employer Plan maintained by any of the Borrowers (based on those assumptions used to fund the Plans) did not, as of the last annual evaluation date prior to the date of this Agreement, exceed the value of the assets of such Plan allocable to such accrued benefits. The present value (determined using actuarial and other assumptions which are reasonable in respect of the benefits provided and the employees participating) of the liability of any of the Borrowers for post retirement benefits to be provided to their current and former employees under Plans which are welfare benefits (as defined in Section 3(1) of ERISA) equals or exceeds the assets under such Plans allocable to such benefits.
(m) The proceeds of the Loans shall be used by Borrowers in the ordinary course of Borrowers' and for the particular purposes set forth elsewhere in this Loan Agreement.
(n) Except as to the Star Fibers Property and to the extent disclosed to Bank in writing, the Properties do not contain, and have not previously contained, any Materials of Environmental Concern in amounts or concentrations which (i) constitute a violation of, or (ii) could be reasonably given rise to liability under Environmental Laws. Except as to the Star Fibers Property and to the extent disclosed to Bank in writing, the Properties and all operations of the Properties are in compliance, and have in the past two years been in material compliance and specifications with all applicable Environmental Laws, there is no contamination at, under or about the Properties (except as disclosed to Bank in writing), or violation of any Environmental Law with respect to the Properties which could interfere with the continued operation of the Properties or materially impair the fair salable value thereof. None of the Borrowers have not received any notice of violation, alleged violation, non-compliance, liability or 119 potential liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Properties, nor do any of the Borrowers have knowledge or reason to believe that any such notice will be received or is being threatened except so far as such notice or threat notice or any aggregation thereof, does not involve a matter or matters that is or are reasonably likely to result in the payment by any of the Borrowers of a Material Environmental Amount. To the best knowledge of Borrowers, after reasonable investigation, Materials of Environmental Concern have not been transported or disposed of from the Properties in violation of, or in a manner or to a location which could reasonably give rise to liability under Environmental Laws, nor have any Materials of Environmental Concern have generated, treated, stored or disposed of at, on or under any of the Properties in violation of, or in a manner that could give rise to liability under, any applicable Environmental Laws except insofar as any such violation or liability is referred to above, or any aggregation thereof, is not reasonably likely to result in the payment by Borrowers of a Material Environmental Amount. No judicial proceeding or governmental or administrative action is pending, or, to the knowledge of Borrowers, threatened, under any Environmental Law to which Borrowers are or will be named as a party which respect to the Properties, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other administrative or judicial requirements outstanding under any Environmental Laws with respect to the Properties except insofar as such proceeding, action, decree, order or other requirement or any aggregation thereof is not reasonably likely to result in the payment of Material Environmental Amounts. There has been no release or threat of release of Materials of Environmental Concern at or from the Properties, or arising from or related to the operation of any of the Borrowers in connection with the Properties in violation of or in amounts or in a manner that could give rise to liability under Environmental Laws except insofar as such violation or liability referred to above, or any aggregation thereof, is not reasonably likely to result in the payment of Material Environmental Amounts. The representations contained in this Subsection 6.1(n) are subject to Materials of Environmental Concern or other matters related to Environmental Laws specifically disclosed in writing to Bank, including the environmental condition of the Star Fibers Property.
(o) Borrowers maintain with one or more financially sound and reputable insurance companies, with premiums at all times currently paid, insurance upon fixed assets and inventory, including public liability insurance, fire and all other risks insured against by extended coverage, fidelity bond coverage, business interruption insurance and all other insurance required by law, all in a form and amount required by law and customary to the respective nature of the businesses of Borrowers and Borrowers' properties, except in a case where failure to maintain such insurance will not have or potentially have an adverse effect on the Borrowers or any of Borrowers' properties or assets.
(p) All of the Properties and the use of the Properties shall comply and shall continue to comply in all material respects with all applicable Laws, including zoning resolutions, building codes, Environmental Laws (except as disclosed in writing to Bank), subdivision and other applicable laws, rules and regulations and are covered by existing valid certificates of occupancy and all those certificates and permits required by applicable laws, rules, regulations and ordinances or in connection with the use, occupancy and operation of the Properties. No material portion of any of the Properties has been damaged in any respect as a result of fire, explosion, accident, flood or other casualty. No condemnation or eminent domain proceeding has been commenced or to the knowledge of Borrowers are about to be commenced against any portion of the Properties. No notice of violation of any federal, state or local law or ordinance or order or requirement has been issued with respect to any Properties.
(q) Each of the Borrowers is solvent as defined or used in the Bankruptcy Act of the United States, as amended, and will continue to be solvent as defined or used in the Bankruptcy Act of the United States following the consummation of the transactions contemplated by this Agreement.
(r) Borrowers are in compliance with all applicable Laws, rules, regulations, and orders of all governmental authorities (federal, state, local or foreign, and including, without limitation, Environmental Laws, rules, regulations, and orders) a breach of which would materially and adversely affect any of the Borrowers' business, credit, operations, financial condition, or prospects.
(s) As of the date of this Agreement, the principal place of business and chief executive office of all of the Borrowers is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. Borrowers' additional place of business or places where assets of Borrowers are located are set forth on Schedule 6-1(s). The location of the principal places of business and chief executive offices of the Borrowers and the locations of any Collateral shall not be changed nor shall there be established additional places of business or additional locations where Collateral is stored, kept or processed without Bank's prior written consent, and prior to making any such change or establishing such new location, Borrowers agree to execute any additional financing statements or other documents or notices required by Bank. As of the date of this Agreement, the books and records of Borrowers and all records and accounts are located and hereafter shall continue to be located at the principal place of business and chief executive office of Borrower.
(t) Business conducted by Borrowers has not been conducted by or under any corporate, trade or fictitious name other than those listed on Schedule 6-1(t) attached to this Agreement, and following the date of this Agreement, Borrower will not conduct their business under any trade or fictitious name other than the duly registered names listed on Schedule 6-1 (t) attached to this Agreement, except with the prior consent of Bank.
(u) As of the date of this Agreement, Borrowers have no investments in any Person, and is not engaged in any joint venture or partnership with any other Person.
(v) All representations and warranties contained in the Loan Documents are incorporated herein by reference and constitute a part hereof as fully as if the same were set forth herein.
Appears in 1 contract
Original. To induce the Lender to enter into this Agreement, the Borrower represents and each Guarantor individually and collectively represent and warrant warrants to the Lender as follows:
(aA) The Borrower and owns 100% of the Guarantors are corporations outstanding capital stock of the Subsidiary Bank;
(B) Borrower is a corporation duly organized, validly existing, existing and in good standing under the Laws of the Commonwealth state of Massachusettsits formation; the Borrower and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A); each Subsidiary Bank is a corporation duly organized, validly existing, existing and in good standing under the Laws of ---------------- its the state of incorporation, all as set forth in Exhibit 5.01(A)its formation; the Borrower, the Guarantors Borrower and the Subsidiaries Subsidiary Bank have the --------------- lawful power to own their properties and to engage in the businesses business they conduct, and each is are duly qualified and in good standing as a foreign corporation corporations in the jurisdictions wherein the nature of the business transacted by it them or property owned by it makes them make such qualification necessary; the states in which the Borrower and each Guarantor and the Subsidiary Bank are qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender in writingB; the percentage of ownership --------------- of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as listed in Exhibit 5.01(A); the ---------------- addresses of all Borrower's and the Subsidiary Bank's respective principal places of business of the Borrower and each Guarantor and Subsidiary are as set forth in Exhibit 5.01(A)B; ---------------- except for Laser Merger Suband as of the date of this Agreement, Inc. in connection with neither Borrower nor the Merger, no Borrower, Guarantor or Subsidiary Bank has changed its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five three (53) years and one (1) month prior to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------
(b) No Borrower, Guarantor or Subsidiary is directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within the meaning of the Investment Company Act of 1940, as amendedhereof;
(cC) No Borrower, Guarantor or Neither Borrower nor the Subsidiary Bank is in material default with respect to any of its existing Indebtedness, or under any material lease, contract or commitment of any kind, and, to Borrower's knowledge, all parties (including Borrower and the Subsidiary Bank) to all such material leases, contracts and other commitments to which Borrower or the Subsidiary Bank is a party (expressly excluding any lease, contract or commitment made with a customer of Subsidiary Bank in the ordinary course of Subsidiary Bank's business) are in material compliance with the provisions of such leases, contracts and other commitments;
(D) The making and performance of this Agreement, the NotesNote, and the Collateral Documents will not and did not (immediately immediately, or with the passage of time, or with the giving of notice):
(1) Violate any provision of the articles of incorporation or bylaws of Borrower or the Subsidiary Bank, or both):violate any Laws or result in a default under any contract, agreement, or instrument to which Borrower or the Subsidiary Bank is a party or by which Borrower or the Subsidiary Bank or any of their respective properties are bound; or
(2) Result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the assets of Borrower or the Subsidiary Bank, except in favor of Lender;
(E) ▇▇▇▇▇▇▇▇ has the power and authority to enter into and perform this Agreement, the Note, and the Collateral Documents, and to incur the Obligations herein and therein provided for, and has taken all corporate action necessary to authorize the execution, delivery, and performance of this Agreement, the Note, and the Collateral Documents;
(F) This Agreement and the Collateral Documents are, and the Note when delivered will be, valid, binding, and enforceable in accordance with their respective terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws, and judicial decisions affecting the rights of creditors generally and by general principles of equity;
(G) Except to the extent disclosed to Lender in writing, there is no pending or, to ▇▇▇▇▇▇▇▇'s knowledge, threatened order, notice, claim, litigation, proceeding or investigation against or affecting Borrower or the Subsidiary Bank, whether or not covered by insurance, that would involve the payment by Borrower or Subsidiary Bank of $500,000.00 or more if adversely determined;
(H) Borrower has good and marketable title to all of the Collateral, subject to no security interest, encumbrance or lien, or claim of any third person;
(I) Borrower's and the Subsidiary Bank's financial statements (including Call Reports, in the case of the Subsidiary Bank) furnished to Lender, including any schedules and notes pertaining thereto, have been prepared in accordance with Generally Accepted Accounting Principles consistently applied, and fully and fairly present the financial condition of Borrower at the dates thereof and the results of operations for the periods covered thereby, and there have been no material adverse changes in the consolidated financial condition or business of Borrower from the date of the latest financial statements provided to Lender to the date hereof, or the Subsidiary Bank from its most recently filed Call Report to the date hereof;
(J) As at the date of this Agreement, neither Borrower nor the Subsidiary Bank has any material Indebtedness of any nature, including, but without limitation, liabilities for taxes and any interest or penalties relating thereto, except to the extent reflected (in a footnote or otherwise) and reserved against in the financial statements of Borrower most recently delivered to Lender or the most recent Call Report of the Subsidiary Bank, or as disclosed in or permitted by this Agreement, as applicable; Borrower does not know and has no reasonable ground to know of any basis for the assertion against it or the Subsidiary Bank of any material Indebtedness of any nature not fully reflected and reserved against in the above referenced respective financial statements or Call Reports, as applicable;
(K) Except as otherwise permitted herein, Borrower and the Subsidiary Bank have filed all material federal, state and local tax returns and other reports they are required by Law to file prior to the date hereof and which are material to the conduct of their business, have paid or caused to be paid all material taxes, assessments and other governmental charges that are due and payable prior to the date hereof, and have made adequate provision for the payment of such taxes, assessments or other charges accruing but not yet payable; Borrower has no knowledge of any deficiency or additional assessment in a materially important amount in connection with any taxes, assessments or charges not provided for on its books or the books of the Subsidiary Bank;
(L) Neither Borrower nor the Subsidiary Bank is in material violation of any applicable Laws;
(M) No representation or warranty by Borrower or the Subsidiary Bank contained herein or in any certificate or other document furnished by Borrower or the Subsidiary Bank pursuant hereto contains any untrue statement of material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made;
(N) Each consent, approval or authorization of, or filing, registration or qualification with, any Person that is required to be obtained or effected by Borrower or the Subsidiary Bank in connection with the execution and delivery of this Agreement, the Note, and the Collateral Documents, or the undertaking or performance of any obligation hereunder or thereunder, has been duly obtained or effected;
(O) The Pledged Stock constitutes all of the issued and outstanding capital stock of the Subsidiary Bank. There are no outstanding warrants, options, rights or other commitments (including, but without limitation, convertible notes or securities) entitling any Person to purchase or otherwise acquire any shares of capital stock of Borrower or the Subsidiary Bank. The Pledged Stock does not constitute “Margin Stock” as defined in Federal Reserve Board Regulation U (12 C.F.R. §§ 221.1 et seq.);
(P) Borrower has not made any agreement or taken any action which may cause anyone to become entitled to a commission or finder's fee as a result of the making of the Loan;
(Q) Borrower does not maintain any “Defined Benefit Pension Plans”, as defined in ERISA; and
Appears in 1 contract
Sources: Loan and Security Agreement (CoastalSouth Bancshares, Inc.)
Original. To induce the Lender to enter into this Agreement, each of the Borrower Borrowers jointly and severally represents and warrants to Lender, as of the date hereof and, except as otherwise expressly provided, as of all times (including, without limitation, as of the date each Guarantor individually Advance under any of the Loans is requested and collectively represent made) until this Agreement is terminated in writing, all Obligations hereunder are satisfied and warrant to the Lender no commitments hereunder remain outstanding, as follows:
(aA) The Borrower and the Guarantors are corporations Cavalier Homes is a corporation duly organized, validly existing, existing and in good standing under the Laws of the Commonwealth State of Massachusetts; the Borrower and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A)Delaware; each Subsidiary Consolidated Entity is a corporation duly organized, validly existing, existing and in good standing under the Laws of ---------------- its the state of incorporationin which it is incorporated or formed, all as set forth in Exhibit 5.01(A)J, attached hereto and incorporated herein; Cavalier Homes and each Consolidated Entity has the Borrower, the Guarantors and the Subsidiaries have the --------------- lawful power to own their its properties and to engage in the businesses they conductbusiness it conducts, and each is duly qualified and in good standing as a foreign corporation in the jurisdictions wherein the nature of the business transacted by it or property owned by it makes such qualification necessary; the states in which the Borrower Cavalier Homes and each Guarantor and Subsidiary are Consolidated Entity is qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender in writingG, attached hereto and incorporated herein; the percentage of ownership --------------- of the Borrower and each Guarantor by Cavalier Homes, Star Industries, Inc. or Cavalier Acceptance, as applicable, of the outstanding stock of each Subsidiary Consolidated Entity is as listed in Exhibit 5.01(A)K, attached hereto and incorporated herein; the ---------------- addresses of all places of business and headquarters of the Borrower Cavalier Homes and each Guarantor and Subsidiary Consolidated Entity are as set forth in Exhibit 5.01(A); ---------------- except for Laser Merger SubH, Inc. in connection with attached hereto and incorporated herein, and the Merger, no Borrower, Guarantor or Subsidiary has changed its name, been addresses of all places where the surviving corporation in Collateral is located and a merger, acquired any business, or changed its principal executive office within five (5) years and one (1) month prior to brief description of the date hereof except as nature of the Collateral at each such location are set forth in Exhibit 5.01(A); H;
(B) Neither Cavalier Homes nor any Consolidated Entity has used any corporate or fictitious name other than the name for Cavalier Homes or each Consolidated Entity as is used in this Agreement, which is the same as the name shown, respectively, on Cavalier Homes' and all each Consolidated Entity's certificate or articles of incorporation through the date of filing of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiarylast amendment thereto, except as set forth in Exhibit 5.01(A); ---------------
(b) No Borrower, Guarantor or Subsidiary is directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within the meaning of the Investment Company Act of 1940, as amended;
(c) No Borrower, Guarantor or Subsidiary is in default with respect to any of its existing Indebtedness, and the making and performance of this Agreement, the Notes, and the Collateral Documents will not and did not (immediately or with the passage of time, the giving of notice, or both):II.6.1
Appears in 1 contract
Sources: Revolving, Warehouse and Term Loan Agreement (Cavalier Homes Inc)
Original. To induce the Lender to enter into this Agreement, the Borrower represents and each Guarantor individually and collectively represent and warrant warrants to the Lender as follows:
(aA) The Borrower and the Guarantors are corporations is a corporation duly organized, validly existing, and in good standing under the Laws of the Commonwealth State of MassachusettsDelaware; the Borrower and the Guarantors have has no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A); each Subsidiary is a corporation duly organized, validly existing, and in good standing under the Laws of ---------------- its state of incorporation, all as set forth in Exhibit 5.01(A); the Borrower, the Guarantors Borrower and the Subsidiaries have the --------------- lawful power to own their properties and to engage in the businesses they conduct, and each is duly qualified and in good standing as a foreign corporation in the jurisdictions wherein the nature of the business transacted by it or property owned by it makes such qualification necessary; the states in which the Borrower and each Guarantor and Subsidiary are qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender in writing; the percentage of the Borrower’s ownership --------------- of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as listed in Exhibit 5.01(A); the ---------------- addresses of all places of business of the Borrower and each Guarantor and Subsidiary its Subsidiaries are as set forth in Exhibit 5.01(A)) or otherwise disclosed to the Lender in writing; ---------------- except for Laser Merger Sub, Inc. in connection with neither the Merger, no Borrower, Guarantor or Borrower nor any Subsidiary has changed its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five (5) years and one (1) month prior to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------;
(bB) No Borrower, Guarantor or Neither the Borrower nor any Subsidiary is directly or indirectly controlled by, or acting on behalf of, any Person which is an "“Investment Company"”, within the meaning of the Investment Company Act of 1940, as amended;
(cC) No Borrower, Guarantor or Neither the Borrower nor any Subsidiary is in default with respect to any of its existing Indebtedness, and the making and performance of this Agreement, the Notes, and the Collateral other Loan Documents will not and did not (immediately promptly or with the passage of time, the giving of notice, or both):
(1) Violate the Certificate of Incorporation or by-laws of the Borrower or any Subsidiary, or violate any Laws or result in a default under any contract, agreement, or instrument to which the Borrower or any Subsidiary is a party or by which the Borrower or any Subsidiary or its property is bound; or
(2) Result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the assets of the Borrower or any Subsidiary except in favor of the Lender;
(D) The Borrower and the Guarantor, to the extent applicable to it, has the power and authority to enter into and perform this Agreement, the Notes, and the other Loan Documents, and to incur the obligations herein and therein provided for, and has taken all actions necessary to authorize the execution, delivery, and performance of this Agreement, the Notes, and the other Loan Documents;
(E) This Agreement, the Notes, and the other Loan Documents are, or when delivered will be, valid, binding, and enforceable in accordance with their respective terms;
(F) Except as disclosed in Exhibit 5.01(F) hereto, there is no pending order, notice, claim, litigation, proceeding, or investigation against or affecting the Borrower or any Subsidiary, whether or not covered by insurance, that would in the aggregate involve the payment of $100,000.00 or more or would otherwise materially or adversely affect the financial condition or business prospects of the Borrower or any Subsidiary if adversely determined;
(G) The Borrower and its Subsidiaries have good and marketable title to all of their assets, none of which is subject to any security interest, encumbrance or lien, or claim of any third Person except for Permitted Liens;
(H) The Financial Statements, including any schedules and notes pertaining thereto, have been prepared in accordance with GAAP, and fully and fairly present the financial condition of the Borrower and its Subsidiaries at the dates thereof and the results of operations for the periods covered thereby, and there have been no material adverse changes in the consolidated financial condition or business of the Borrower and its Subsidiaries from September 30, 2013, to the date hereof;
(I) As of the date hereof, the Borrower and its Subsidiaries have no material Indebtedness of any nature, including, but without limitation, liabilities for taxes and any interest or penalties relating thereto except to the extent reflected (in a footnote or otherwise) and reserved against in the consolidated balance sheet dated December 31, 2012 included in the Financial Statements or as disclosed in, or permitted by, this Agreement; and the Borrower does not know or have reasonable ground to know of any basis for the assertion against it or any Subsidiary of any such claim or litigation based upon such Indebtedness as of the date of the Closing except as disclosed on Exhibit 5.01(F) or otherwise disclosed to the Lender in writing;
(J) Except as otherwise permitted herein, the Borrower has filed all federal, state, and local tax returns and other reports required by any applicable Laws to have been filed prior to the date hereof, has paid or caused to be paid all taxes, assessments, and other governmental charges that are due and payable prior to the date hereof, and has made adequate provision for the payment of such taxes, assessments, or other charges accruing but not yet payable; the Borrower has no knowledge of any deficiency or additional assessment in a materially important amount in connection with any taxes, assessments, or charges not provided for on its books;
(K) Except to the extent that the failure to comply would not materially interfere with the conduct of the business of the Borrower or any Subsidiary, the Borrower and its Subsidiaries have each complied with all applicable Laws with respect to (1) any restrictions, specifications, or other requirements pertaining to products that it manufactures or sells or to the services it performs; (2) the conduct of its business; and (3) the use, maintenance, and operation of the real and personal properties owned or leased by it in the conduct of its business;
(L) No representation or warranty by or with respect to the Borrower or any Subsidiary contained herein or in any certificate or other document furnished by the Borrower or any Subsidiary pursuant hereto contains any untrue statement of a material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made;
(M) Each consent, approval or authorization of, or filing, registration or qualification with, any Person required to be obtained or effected by the Borrower, any Subsidiary or the Guarantor in connection with the execution and delivery of this Agreement, the Notes, and the other Loan Documents or the undertaking or performance of any obligation hereunder or thereunder has been duly obtained or effected;
(N) All existing Indebtedness of the Borrower or any Subsidiary: (1) for money borrowed, or (2) under any security agreement, mortgage or agreement covering the lease by the Borrower or any Subsidiary as lessee of real or personal property is described in Exhibit 5.01(N);
(O) Except as entered into in the ordinary course of business, reflected in the Financial Statements or otherwise described in Exhibit 5.01(O), attached hereto, or otherwise disclosed to the Lender in writing, (a) neither the Borrower nor any Subsidiary has any material leases, contracts, or commitments of any kind (including, without limitation, potential “earn-out” payments; employment agreements; collective bargaining agreements; powers of attorney; distribution arrangements; licenses, patents or license agreements; contracts for future purchase or delivery of goods or rendering of services; bonuses, pension, and retirement plans; or accrued vacation pay, insurance, and welfare agreements); (b) to the best of Borrower’s knowledge, all parties to all such material leases, contracts, and other commitments to which the Borrower or any Subsidiary is a party have complied with the provisions of such leases, contracts, and other commitments; and (c) to the best of Borrower’s knowledge, no party is in default under any thereof and no event has occurred which, but for the giving of notice or the passage of time, or both, would constitute a default;
(P) All registered patents, trademarks and copyrights of the Borrower, the Guarantor or any other Subsidiary, all pending applications of the Borrower, the Guarantor or any other Subsidiary for registration of any patents, trademarks or copyrights, and all licenses or agreements in connection with any Intellectual Property of the Borrower, the Guarantor or any other Subsidiary are described in Exhibit 5.01(P) attached hereto;
(Q) The Borrower has not made any agreement or taken any action which may cause anyone to become entitled to a commission or finder’s fee as a result of or in connection with the making of the Loans;
(R) The Borrower’s consolidated federal tax returns for all years of operation, including the year ended December 31, 2012, have been filed with the Internal Revenue Service and have not been challenged;
(S) Any Employee Pension Benefit Plans, as defined in the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), of the Borrower and each Subsidiary meet, as of the date hereof, the minimum funding standards of 29 U.S.C.A. 1082 (Section 302 of ERISA), and no Reportable Event or Prohibited Transaction, as defined in ERISA, has occurred with respect to any Employee Benefit Plans, as defined in ERISA, of the Borrower or any Subsidiary;
(T) The liens and security interests created pursuant to Sections 4.02 and 4.03 are in all cases first and prior liens except for Permitted Liens; and
(U) Neither the Borrower nor any Subsidiary, to the best knowledge of the Borrower, owns occupies or operates, or, to the best of their knowledge has ever owned, occupied or operated a site or vessel on which has been stored any hazardous material or oil, without compliance with all statues, regulations, ordinances, directives, and orders of every federal, state, municipal and other governmental authority which has or claims jurisdiction relative thereto (the terms “site,” “vessel” and “hazardous material,” respectively, as used herein include the definitions of those terms in Massachusetts General Laws, Ch. 21E); neither the Borrower nor any Subsidiary, to the best knowledge of the Borrower, has ever disposed of, transported or arranged for the transport of any hazardous material or oil without compliance with all such statutes, regulations, ordinances, directives and orders in all material respects.
Appears in 1 contract
Sources: Loan and Security Agreement (World Energy Solutions, Inc.)
Original. To induce the Lender BANK to enter into this AgreementAGREEMENT, the Borrower BORROWER represents and each Guarantor individually and collectively represent and warrant warrants to the Lender BANK as follows:
(a) A. The Borrower and the Guarantors are corporations duly organized, validly existing, and in good standing under the Laws of the Commonwealth of Massachusetts; the Borrower and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A); each Subsidiary BORROWER is a corporation duly organized, validly existing, and in good standing under the Laws laws of ---------------- its state the State of incorporation, all as set forth in Exhibit 5.01(A)South Dakota; the Borrower, BORROWER has the Guarantors and the Subsidiaries have the --------------- lawful power to own their its properties and to engage in the businesses they conduct, it conducts and each is duly qualified and in good standing as a foreign corporation in the jurisdictions wherein the nature of the business transacted by it or property owned by it makes such qualification qualifications necessary; the states in which the Borrower and each Guarantor and Subsidiary are BORROWER is qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender BANK in writing; the percentage of ownership --------------- of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as listed in Exhibit 5.01(A); the ---------------- addresses of all places of business of the Borrower BORROWER are disclosed to the BANK in writing; and each Guarantor and Subsidiary are as set forth in Exhibit 5.01(A); ---------------- except for Laser Merger Sub, Inc. in connection with the Merger, no Borrower, Guarantor or Subsidiary BORROWER has changed not change its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five (5) years and one (1) month prior to the date hereof except as is set forth in an Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------hereto.
(b) No Borrower, Guarantor or Subsidiary B. The BORROWER is not directly or indirectly controlled by, or acting on behalf of, any Person PERSON which is an "Investment Company", " within the meaning of the Investment Company Act of 1940, as amended;.
(c) No Borrower, Guarantor or Subsidiary C. The BORROWER is not in default with respect to any of its existing IndebtednessINDEBTEDNESS, and the making and performance of this Agreement, the Notes, AGREEMENT and the Collateral Documents COLLATERAL DOCUMENTS will not and did not (immediately or with the passage of time, the giving of notice, or both):
1. Violate the articles of incorporation or bylaws of the BORROWER, or violate any laws or result in a default under any contract, agreement, or instrument to which the BORROWER is a party or by which the BORROWER or its property is bound; or
2. Result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the assets of the BORROWER except in favor of the BANK:
D. The BORROWER has the power and authority to enter into and perform this AGREEMENT, the NOTE, and the COLLATERAL DOCUMENTS, and to incur the obligations herein and therein provided for, and has taken all actions necessary to authorize the execution, delivery, and performance of this AGREEMENT, the NOTE, and the COLLATERAL DOCUMENTS;
E. This AGREEMENT and the COLLATERAL DOCUMENTS are, or when delivered will be, valid, binding, and enforceable in accordance with their respective terms;
F. There is no pending order, notice, claim, litigation, proceeding, or investigation against or affecting the BORROWER, whether or not covered by insurance, that would in the aggregate involve the payment of $10,000.00 or more or would otherwise materially or adversely affect the financial condition or business prospects of the BORROWER if adversely determined;
G. The BORROWER has good and marketable title to all of its assets, none of which is subject to any security interest, encumbrance or lien, or claim of any third person except for PERMITTED LIENS;
H. The FINANCIAL STATEMENTS, including any schedules and notes pertaining thereto, have been prepared in accordance with GAAP, and fully and fairly present the financial condition of M-TRON Industries at the dates thereof and the results of operations for the periods covered thereby, and there have been no material adverse changes in the consolidated financial condition or business of M-TRON Industries from December 31, 1999 to the date hereof;
I. As of the date hereof the BORROWER has no material INDEBTEDNESS of any nature, including but without limitation, liabilities for taxes and any interest or penalties relating thereto except to the extent reflected (in a footnote or otherwise) in the FINANCIAL STATEMENT or as disclosed in, or permitted by, this agreement; and the BORROWER does not know or have reasonable ground to know of any basis for the assertion against it of any such INDEBTEDNESS as of the date of the CLOSING;
J. Except as otherwise permitted herein, the BORROWER has filed all appropriate federal, state and local tax returns and other reports required by any applicable laws to have been filed prior to the date hereof, has paid or caused to be paid all taxes, assessments, and other governmental charges that are due and payable prior to the date hereof, and has made adequate provision for the payment of such taxes, assessments, or other charges accruing but not yet payable; the BORROWER has no knowledge of any deficiency or additional assessment in a materially important amount in connection with any taxes, assessments, or charges not provided for on its books;
K. Except to the extent that the failure to comply would not materially interfere with the conduct of the business of the BORROWER, the BORROWER has complied with all applicable LAWS with respect to (i) any restrictions, specifications, or other requirements pertaining to products that it manufactures or sells or to the services it performs; (ii) the conduct of its business; and (iii) the use, maintenance, and operation of the real and personal properties owned or leased by it in the conduct of its business;
L. No representations or warranty by or with respect to the BORROWER contained herein or in any certificate or other document furnished by the BORROWER pursuant hereto contains any untrue statement of a material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made;
M. Each consent, approval or authorization of, or filing, registration or qualification with, any PERSON required to be obtained or effected by the BORROWER in connection with the execution and delivery of this AGREEMENT, any NOTE, and the COLATERAL DOCUMENTS or the undertaking or performance of any obligation hereunder or thereunder has been duly obtained or effected;
N. All existing INDEBTEDNESS of the BORROWER: i) for money borrowed, or ii) under any security agreement, mortgage, or agreement covering the lease by the BORROWER as lessee of real or personal property is described in a writing delivered to BANK this date;
O. Except as disclosed to the BANK in writing i) the BORROWER has no material leases, contracts, or commitments of any kind (including, without limitation, employment agreements, collective bargaining agreements, powers of attorney, distribution arrangements, patent license agreements, contracts for future purchase or delivery of goods or rendering of services, bonuses, pension, and retirement plans or accrued vacation pay, insurance and welfare agreements; ii) to the best of BORROWER's knowledge, all parties to all such material leases, contracts and other commitments to which the BORROWER is a party have complied with the provisions of such leases, contracts, and other commitments; and iii) to the best of BORROWER's knowledge, no party is in default under any thereof and no event has occurred which, but for the giving of notice or the passage of time, or both, would constitute a default;
P. The BORROWER has not made any agreement or taken any action which may cause anyone to become entitled to a commission or a finder's fee as a result of or in connection with the making of this AGREEMENT;
Q. Any federal tax returns for all years of operation, including the last tax year for BORROWER have been filed with the Internal Revenue Service and have not been challenged;
R. Any Employee Pension Benefit Plans, as defined in the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of the BORROWER meet, as of the date hereof, the minimum funding standards of 29 U.S.C. Sec. 1082 (Section 302 of ERISA), and no Reportable Event or Prohibited Transaction as defined in ERISA, has occurred with respect to any Employee Benefit Plans, as defined in ERISA, of the BORROWER; and S. The liens and security interests created pursuant to Section IV of this AGREEMENT, including any separate real estate liens granted in connection herewith, are in all cases first and prior liens except for PERMITTED LIENS; T BORROWER warrants (and this shall be a continuing warranty which shall survive until all the OBLIGATIONS of BORROWER to BANK have been fully satisfied) that it is in compliance with all federal, state and local environmental laws and regulations and has obtained all environmental permits necessary of appropriate to the conduct of its business. There is not pending nor, to the best of the BORROWER's knowledge after due inquiry, are there any threatened environmental enforcement actions, suits or proceedings before any court, tribunal or administrative body of official. Responsible officers and agents of the BORROWER have made an extensive investigation and have determined that the BORROWER has not, nor has any former owner of real property occupied by BORROWER stored, used or disposed of any toxic or hazardous substance on its properties or transported any such substance to or from its properties in violation of any presently existing or previously existing laws, regulations or policies. The BORROWER will not store, use or dispose of such substances on its properties.
Appears in 1 contract
Sources: Revolving Loan and Security Agreement (M Tron Industries Inc)
Original. To induce the Lender Bank to enter into this Agreement, the Borrower represents and each Guarantor individually and collectively represent and warrant warrants to the Lender Bank as follows:
(aA) The Borrower and the Guarantors are corporations is a corporation duly organized, validly existing, and in good standing under the Laws of the Commonwealth State of MassachusettsNevada; the Borrower and the Guarantors have has no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A); each Subsidiary is a corporation duly organized, validly existing, and in good standing under the Laws of ---------------- its state of incorporation, all as set forth in Exhibit 5.01(A); the Borrower, the Guarantors Borrower and the Subsidiaries have the --------------- lawful power to own their properties and to engage in the businesses they conduct, and each is duly qualified and in good standing as a foreign corporation in the jurisdictions wherein the nature of the business transacted by it or property owned by it makes such qualification necessary; the states in which the Borrower and each Guarantor and Subsidiary are qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender Bank in writing; the percentage of the Borrower's ownership --------------- of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as listed in Exhibit 5.01(A); the ---------------- addresses of all places of business of the Borrower and each Guarantor and Subsidiary its Subsidiaries are as set forth in Exhibit 5.01(A)) or otherwise disclosed to the Bank in writing; ---------------- except for Laser Merger Sub, Inc. in connection with neither the Merger, no Borrower, Guarantor or Borrower nor any Subsidiary has changed its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five (5) years and one (1) month prior to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------;
(bB) No Borrower, Guarantor or Neither the Borrower nor any Subsidiary is directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within the meaning of the Investment Company Act of 1940, as amended;
(cC) No Borrower, Guarantor or Neither the Borrower nor any Subsidiary is in default with respect to any of its existing Indebtedness, and the making and performance of this Agreement, the NotesNote, and the Collateral Ancillary Documents will not and did not (immediately or with the passage of time, the giving of notice, or both):
(1) Violate the Articles of Incorporation or by-laws of the Borrower or any Subsidiary, or violate any Laws or result in a default under any contract, agreement, or instrument to which the Borrower or any Subsidiary is a party or by which the Borrower or any Subsidiary or its property is bound; or
(2) Result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the assets of the Borrower or any Subsidiary except in favor of the Bank;
(D) The Borrower has the power and authority to enter into and perform this Agreement, the Note, and the Ancillary Documents to which it is a party, and to incur the obligations herein and therein provided for, and has taken all actions necessary to authorize the execution, delivery, and performance of this Agreement, the Note, and the Ancillary Documents;
(E) This Agreement, the Note, and the Ancillary Documents are, or when delivered will be, valid, binding, and enforceable in accordance with their respective terms;
(F) Except as disclosed in Exhibit 5.01(F) hereto, there is no pending order, notice, claim, litigation, proceeding, or investigation against or affecting the Borrower or any Subsidiary, whether or not covered by insurance, that would in the aggregate involve the payment of $100,000.00 or more or would otherwise materially and adversely affect the financial condition or business prospects of the Borrower and its Subsidiaries, taken as a whole, if adversely determined;
(G) The Borrower and its Subsidiaries have good and marketable title to all of their assets, none of which is subject to any security interest, encumbrance or lien, or claim of any third Person except for Permitted Liens and liens granted by a Subsidiary in such Subsidiary's assets as security for borrowed money;
(H) The Financial Statements, including any schedules and notes pertaining thereto, have been prepared in accordance with GAAP, and fairly present the consolidated financial condition of the Borrower and its Subsidiaries at the dates thereof and the results of operations for the periods covered thereby, and there have been no material adverse changes in the consolidated financial condition or business of the Borrower and its Subsidiaries from the date of the Financial Statements to the date hereof;
(I) As of the date hereof, the Borrower and its Subsidiaries have no material Indebtedness of any nature, including, but without limitation, liabilities for taxes and any interest or penalties relating thereto except to the extent reflected (in a footnote or otherwise) and reserved against in the consolidated balance sheet dated September 30, 2000 included in the Financial Statements or as disclosed in, or permitted by, this Agreement; and the Borrower does not know or have reasonable ground to know of any basis for the assertion against it or any Subsidiary of any such claim or litigation based upon such Indebtedness as of the date of the Closing except as disclosed on Exhibit 5.01(F) or otherwise disclosed to the Bank in writing;
(J) Except as otherwise permitted herein, the Borrower has filed all federal, state, and local tax returns and other reports required by any applicable Laws to have been filed prior to the date hereof, has paid or caused to be paid all taxes, assessments, and other governmental charges that are due and payable prior to the date hereof, and has made adequate provision for the payment of such taxes, assessments, or other charges accruing but not yet payable; the Borrower has no knowledge of any deficiency or additional assessment in a materially important amount in connection with any taxes, assessments, or charges not provided for on its books;
(K) Except to the extent that the failure to comply would not materially interfere with the conduct of the business of the Borrower or any Subsidiary, the Borrower and its Subsidiaries have each complied with all applicable Laws with respect to (1) any restrictions, specifications, or other requirements pertaining to products that it manufactures or sells or to the services it performs; (2) the conduct of its business; and (3) the use, maintenance, and operation of the real and personal properties owned or leased by it in the conduct of its business;
(L) No representation or warranty by or with respect to the Borrower or any Subsidiary contained herein or in any certificate or other document furnished by the Borrower or any Subsidiary pursuant hereto contains any untrue statement of a material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made;
(M) Each consent, approval or authorization of, or filing, registration or qualification with, any Person required to be obtained or effected by the Borrower, any Subsidiary, or any Guarantor in connection with the execution and delivery of this Agreement, the Note, and the Ancillary Documents or the undertaking or performance of any obligation hereunder or thereunder has been duly obtained or effected;
(N) All Indebtedness existing as of the Closing of the Borrower or any Subsidiary: (1) for money borrowed, or (2) under any security agreement, mortgage or agreement covering the lease by the Borrower or any Subsidiary as lessee of real or personal property is described in Exhibit 5.01(N);
(O) Except as described in Exhibit 5.01(O), attached hereto, or otherwise disclosed to the Bank in writing, (a) neither the Borrower nor any Subsidiary has any material leases, contracts, or commitments of any kind (including, without limitation, employment agreements; collective bargaining agreements; powers of attorney; distribution arrangements; licenses, patents or license agreements; contracts for future purchase or delivery of goods or rendering of services; bonuses, pension, and retirement plans; or accrued vacation pay, insurance, and welfare agreements); (b) to the best of Borrower's knowledge, all parties to all such material leases, contracts, and other commitments to which the Borrower or any Subsidiary is a party have complied with the provisions of such leases, contracts, and other commitments; and (c) to the best of Borrower's knowledge, no party is in default under any thereof and no event has occurred which, but for the giving of notice or the passage of time, or both, would constitute a default;
(P) The Borrower has not made any agreement or taken any action which may cause anyone to become entitled to a commission or finder's fee as a result of or in connection with the making of the Loan;
(Q) The Borrower's consolidated federal tax returns for all years of operation, including the year ended December 31, 1999, have been filed with the Internal Revenue Service and have not been challenged;
(R) Any Employee Pension Benefit Plans, as defined in the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of the Borrower and each Subsidiary meet, as of the date hereof, the minimum funding standards of 29 U.S.C.A. 1082 (Section 302 of ERISA), and no Reportable Event or Prohibited Transaction, as defined in ERISA, has occurred with respect to any Employee Benefit Plans, as defined in ERISA, of the Borrower or any Subsidiary; and
(S) All Intellectual Property owned or used by the Borrower is described in Exhibit 5.01(S) attached hereto, and the Borrower has title or valid licenses as to all such Intellectual Property subject to no superior right or to any restriction except as is set forth in Exhibit 5.01(S) attached hereto.
Appears in 1 contract
Sources: Loan Agreement (Fibercore Inc)
Original. To induce the Lender Banks to enter into this Agreement, the Borrower and each Guarantor individually Subsidiary jointly and collectively severally represent and warrant to the Lender each Bank as follows:
(aA) The Borrower and the Guarantors are corporations is a corporation duly organized, validly existing, existing and in good standing under the Laws of the Commonwealth State of Massachusetts; the Borrower and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A)Tennessee; each Subsidiary is a corporation duly organized, validly existing, existing and in good standing under the Laws of ---------------- its state of incorporation, all as set forth in Exhibit 5.01(A)E; the Borrower, the Guarantors Borrower and the Subsidiaries each Subsidiary have the --------------- lawful power to own their properties and to engage in the businesses business they conduct, and each is duly qualified and in good standing as a foreign corporation in the jurisdictions wherein the nature of the business transacted by it or property owned by it makes such qualification necessary; the states in which the Borrower and each Guarantor and Subsidiary are qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender in writingF; the percentage of the Borrower's ownership --------------- of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as listed in Exhibit 5.01(A)G; the ---------------- addresses of all places of business of neither the Borrower and each Guarantor and Subsidiary are as set forth in Exhibit 5.01(A); ---------------- except for Laser Merger Sub, Inc. in connection with the Merger, no Borrower, Guarantor or nor any Subsidiary has changed its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five (5) years and one (1) month prior to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorizedsince April 21, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary1994, except as set forth in Exhibit 5.01(A)H; ---------------
(b) No Borrower, Guarantor or Subsidiary is directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within and the meaning addresses of all places of business of the Investment Company Act of 1940, Borrower and each Subsidiary are as amendedset forth in Exhibit I;
(cB) No Borrower, Guarantor or Neither the Borrower nor any Subsidiary is in material default with respect to any of its existing Indebtedness, and the making and performance of this Agreement, the Notes, Notes and the Collateral other Loan Documents will not and did not (immediately immediately; or with the passage of time, time or the giving of notice, or both):
(1) Violate the charter or bylaw provisions of the Borrower or any Subsidiary, or violate any Laws or result in a default under any contract, agreement, or instrument to which the Borrower or any Subsidiary is a party or by which the Borrower or any Subsidiary or its property is bound; or
(2) Result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the assets of the Borrower or any Subsidiary;
(C) The Borrower has the power and authority to enter into and perform this Agreement, the Notes and the other Loan Documents, as applicable, and to incur the Obligations herein and therein provided for, and has taken all corporate action necessary to authorize the execution, delivery, and performance of this Agreement, the Notes and the other Loan Documents;
(D) This Agreement and the other Loan Documents are, and the Notes when delivered will be, valid, binding, and enforceable in accordance with their respective terms;
(E) Except as disclosed in Exhibit J hereto, there is no pending or, to Borrower's knowledge, threatened order, notice, claim, litigation, proceeding or investigation against or
Appears in 1 contract
Original. To induce the Lender to enter into this Agreement, the Borrower represents and each Guarantor individually and collectively represent and warrant warrants to the Lender as follows:
(aA) The Borrower and owns 100% of the Guarantors are corporations outstanding capital stock of the Subsidiary Bank;
(B) Borrower is a corporation duly organized, validly existing, existing and in good standing under the Laws of the Commonwealth state of Massachusettsits formation; the Borrower and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A); each Subsidiary Bank is a corporation duly organized, validly existing, existing and in good standing under the Laws of ---------------- its the state of incorporation, all as set forth in Exhibit 5.01(A)its formation; the Borrower, the Guarantors Borrower and the Subsidiaries Subsidiary Bank have the --------------- lawful power to own their properties and to engage in the businesses business they conduct, and each is are duly qualified and in good standing as a foreign corporation corporations in the jurisdictions wherein the nature of the business transacted by it them or property owned by it makes them make such qualification necessary; the states in which the Borrower and each Guarantor and the Subsidiary Bank are qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender in writingB; the percentage of ownership --------------- of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as listed in Exhibit 5.01(A); the ---------------- addresses of all Borrower’s and the Subsidiary Bank’s respective principal places of business of the Borrower and each Guarantor and Subsidiary are as set forth in Exhibit 5.01(A)B; ---------------- except for Laser Merger Suband as of the date of this Agreement, Inc. in connection with neither Borrower nor the Merger, no Borrower, Guarantor or Subsidiary Bank has changed its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five three (53) years and one (1) month prior to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------
(b) No Borrower, Guarantor or Subsidiary is directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within the meaning of the Investment Company Act of 1940, as amendedhereof;
(cC) No Borrower, Guarantor or Neither Borrower nor the Subsidiary Bank is in material default with respect to any of its existing Indebtedness, or under any material lease, contract or commitment of any kind, and, to Borrower’s knowledge, all parties (including Borrower and the Subsidiary Bank) to all such material leases, contracts and other commitments to which Borrower or the Subsidiary Bank is a party (expressly excluding any lease, contract or commitment made with a customer of Subsidiary Bank in the ordinary course of Subsidiary Bank’s business) are in material compliance with the provisions of such leases, contracts and other commitments;
(D) The making and performance of this Agreement, the NotesNote, and the Collateral Documents will not and did not (immediately immediately, or with the passage of time, or with the giving of notice):
(1) Violate any provision of the articles of incorporation or bylaws of Borrower or the Subsidiary Bank, or both):violate any Laws or result in a default under any contract, agreement, or instrument to which Borrower or the Subsidiary Bank is a party or by which Borrower or the Subsidiary Bank or any of their respective properties are bound; or {BH489438.3}
(2) Result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the assets of Borrower or the Subsidiary Bank, except in favor of Lender;
(E) Borrower has the power and authority to enter into and perform this Agreement, the Note, and the Collateral Documents, and to incur the Obligations herein and therein provided for, and has taken all corporate action necessary to authorize the execution, delivery, and performance of this Agreement, the Note, and the Collateral Documents;
(F) This Agreement and the Collateral Documents are, and the Note when delivered will be, valid, binding, and enforceable in accordance with their respective terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws, and judicial decisions affecting the rights of creditors generally and by general principles of equity;
(G) Except to the extent disclosed to Lender in writing, there is no pending or, to Borrower’s knowledge, threatened order, notice, claim, litigation, proceeding or investigation against or affecting Borrower or the Subsidiary Bank, whether or not covered by insurance, that would involve the payment by Borrower or Subsidiary Bank of $500,000.00 or more if adversely determined;
(H) Borrower has good and marketable title to all of the Collateral, subject to no security interest, encumbrance or lien, or claim of any third person;
(I) Borrower’s and the Subsidiary Bank’s financial statements (including call reports, in the case of the Subsidiary Bank) furnished to Lender, including any schedules and notes pertaining thereto, have been prepared in accordance with Generally Accepted Accounting Principles consistently applied, and fully and fairly present the financial condition of Borrower at the dates thereof and the results of operations for the periods covered thereby, and there have been no material adverse changes in the consolidated financial condition or business of Borrower from the date of the latest financial statements provided to Lender to the date hereof, or the Subsidiary Bank from its most recently filed call report to the date hereof;
(J) As at the date of this Agreement, neither Borrower nor the Subsidiary Bank has any material Indebtedness of any nature, including, but without limitation, liabilities for taxes and any interest or penalties relating thereto, except to the extent reflected (in a footnote or otherwise) and reserved against in the financial statements of Borrower most recently delivered to Lender or the most recent call report of the Subsidiary Bank, or as disclosed in or permitted by this Agreement, as applicable; Borrower does not know and has no reasonable ground to know of any basis for the assertion against it or the Subsidiary Bank of any material Indebtedness of any nature not fully reflected and reserved against in the above referenced respective financial statements or call reports, as applicable;
(K) Except as otherwise permitted herein, Borrower and the Subsidiary Bank have filed all federal, state and local tax returns and other reports they are required by Law to file prior to the date hereof and which are material to the conduct of their business, have paid or caused to be paid all taxes, assessments and other governmental charges that are due and payable prior to the date hereof, and have made adequate provision for the payment of such taxes, assessments or other {BH489438.3} charges accruing but not yet payable; Borrower has no knowledge of any deficiency or additional assessment in a materially important amount in connection with any taxes, assessments or charges not provided for on its books or the books of the Subsidiary Bank;
(L) Neither Borrower nor the Subsidiary Bank is in material violation of any applicable Laws;
(M) No representation or warranty by Borrower or the Subsidiary Bank contained herein or in any certificate or other document furnished by Borrower or the Subsidiary Bank pursuant hereto contains any untrue statement of material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made;
(N) Each consent, approval or authorization of, or filing, registration or qualification with, any Person that is required to be obtained or effected by Borrower or the Subsidiary Bank in connection with the execution and delivery of this Agreement, the Note, and the Collateral Documents, or the undertaking or performance of any obligation hereunder or thereunder, has been duly obtained or effected;
(O) The Pledged Stock constitutes 51% of the issued and outstanding capital stock of the Subsidiary Bank. There are no outstanding warrants, options, rights or other commitments (including, but without limitation, convertible notes or securities) entitling any Person to purchase or otherwise acquire any shares of capital stock of Borrower or the Subsidiary Bank. The Pledged Stock does not constitute “Margin Stock” as defined in Federal Reserve Board Regulation U (12 C.F.R. §§ 221.1 et seq.);
(P) Borrower has not made any agreement or taken any action which may cause anyone to become entitled to a commission or finder’s fee as a result of the making of the Loan;
(Q) Borrower does not maintain any “Defined Benefit Pension Plans”, as defined in ERISA; and
(R) Section 5.02Survival. All of the representations and warranties set forth in Section 5.01 shall survive and shall remain true and correct until all Obligations are satisfied in full (except, if applicable, to the extent that any such representation or warranty expressly relates solely to an earlier date or period of time).
Appears in 1 contract
Original. To induce the Lender to enter into this Agreement, the Borrower Borrowers jointly and each Guarantor individually and collectively severally represent and warrant to the Lender as follows:
12 30 (a) The Each Borrower and the Guarantors are corporations duly organized, validly existing, and in good standing under the Laws of the Commonwealth of Massachusetts; the Borrower and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A); each Subsidiary is a corporation duly organized, validly existing, and in good standing under the Laws of ---------------- its the state of its incorporation; no Borrower has any Subsidiaries, all except as set forth in Exhibit 5.01(A)5.1
(a) attached hereto; each Borrower has the Borrower, the Guarantors and the Subsidiaries have the --------------- lawful power to own their its properties and to engage in the businesses they conduct, business it conducts and each is duly qualified and in good standing as a foreign corporation in the jurisdictions wherein the nature of the business transacted by it or property owned by it makes such qualification necessary; the states in which the each Borrower and each Guarantor and Subsidiary are is qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender in writing; the percentage of ownership --------------- of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as listed in Exhibit 5.01(A5.1(a); the ---------------- identity of each shareholder of each Borrower (except for SpecTran) and the number of shares owned by each is set forth in Exhibit 5.1(a); and the addresses of all places of business of the each Borrower and each Guarantor and Subsidiary are as set forth in Exhibit 5.01(A5.1(a); ---------------- except for Laser Merger Sub, Inc. in connection with the Merger, no Borrower, Guarantor or Subsidiary has changed its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five (5) years and one (1) month prior to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------;
(b) No Borrower, Guarantor or Subsidiary Borrower is directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within the meaning of the Investment Company Act of 1940, as amended;
(c) No Borrower, Guarantor or Subsidiary Borrower is in default with respect to any of its existing IndebtednessConsolidated Liabilities, and the making and performance of this Agreement, the Notes, Revolving Note and the Collateral Documents will not and did not (immediately or with the passage of time, the giving of notice, or both):
(i) Violate the charter or by-laws of any Borrower, or violate any Laws or result in a default under any contract, agreement, or instrument to which any Borrower is a party or by which any Borrower or its property is bound; or
(ii) Result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the Consolidated Assets of any Borrower, except as set forth in the Collateral Documents;
(d) Each Borrower to the extent applicable to it, has the power and authority to enter into and perform this Agreement, the Revolving Note and the Collateral Documents, and to incur the obligations herein and therein provided for, and has taken all actions necessary to authorize the execution, delivery, and performance of this Agreement, the Revolving Note and the Collateral Documents;
(e) This Agreement, the Revolving Note and the Collateral Documents are, or when delivered will be, valid, binding, and enforceable in accordance with their respective terms, except to the extent enforceability is subject to the exercise of judicial discretion in accordance with general equitable principles and to applicable bankruptcy, insolvency, reorganization, moratorium or other laws for the relief of debtors heretofore or hereafter enacted;
(f) Except as disclosed on Exhibit 5.1(f) attached hereto, there is no pending order, notice, claim (other than claims arising in the ordinary course of business for amounts not exceeding $25,000.00 individually or $100,000.00 in the aggregate), litigation, proceeding, or investigation against or affecting any Borrower, whether or not covered by insurance;
Appears in 1 contract
Sources: Mortgage, Assignment of Rents and Security Agreement (Spectran Corp)
Original. To induce the Lender Bank to enter into this Agreement, the Borrower represents and each Guarantor individually and collectively represent and warrant warrants to the Lender Bank as follows:
(aA) The Borrower and the Guarantors are corporations duly organized, validly existing, and in good standing under the Laws of the Commonwealth of Massachusetts; the Borrower and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A); each Subsidiary is a corporation duly organized, validly existing, and in good standing under the Laws laws of ---------------- the State of Delaware; the Borrower has no Subsidiaries other than the Subsidiaries named in Exhibit 4.01(A); each Subsidiary is a corporation duly organized, validly existing and in good standing under the laws of its state or nation of incorporation, all as set forth in Exhibit 5.01(A4.01(A); the Borrower, the Guarantors Borrower and the Subsidiaries have the --------------- lawful power to own their properties and to engage in the businesses they conduct, and each is duly qualified and in good standing as a foreign corporation in the jurisdictions wherein the nature of the business transacted by it or property owned by it makes such qualification necessary; necessary (except where failure to so qualify would not have a material adverse effect on the states in which the Borrower and each Guarantor and Subsidiary are qualified to do business are set forth in Exhibit 5.01(A) business, assets or otherwise disclosed to the Lender in writing; the percentage of ownership --------------- financial condition of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is its Subsidiaries taken as listed in Exhibit 5.01(Aa whole); the ---------------- addresses of all places of business of ;
(B) Neither the Borrower and each Guarantor and Subsidiary are as set forth in Exhibit 5.01(A); ---------------- except for Laser Merger Sub, Inc. in connection with the Merger, no Borrower, Guarantor or Subsidiary has changed its name, been the surviving corporation in a merger, acquired nor any business, or changed its principal executive office within five (5) years and one (1) month prior to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------
(b) No Borrower, Guarantor or Subsidiary is directly or indirectly controlled by, or acting on behalf of, any Person which is an "“Investment Company", ,” within the meaning of the Investment Company Act of 1940, as amended;
(cC) No BorrowerExcept as disclosed in Exhibit 4.01(C) attached hereto, Guarantor or neither the Borrower nor any Subsidiary is in default with respect to any of its existing IndebtednessIndebtedness in any material respect, and the making and performance of this Agreement, the Notes, Notes and the Collateral other Loan Documents will not and did not (immediately or with the passage of time, the giving of notice, or both):
(1) Violate charter documents, or the By-Laws of the Borrower or any Subsidiary, or violate any Laws or result in a default, in any material respect, under any contract, agreement or instrument to which the Borrower or any Subsidiary is a party or by which the Borrower or any Subsidiary or its property is bound; or
(2) Result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the assets of the Borrower or any Subsidiary except in favor of the Bank;
(D) The Borrower has the power and authority to enter into and perform this Agreement, the Notes and the other Loan Documents, and to incur the obligations herein and therein provided for, and has taken all actions necessary to authorize the execution, delivery and performance of this Agreement, the Notes and the other Loan Documents;
(E) This Agreement, the Notes and the other Loan Documents are, or when delivered will be, valid, binding and enforceable under applicable law in accordance with their respective terms, except as may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by general equitable principles (regardless of whether considered in a proceeding at law or in equity);
(F) Except as disclosed in Exhibit 4.01(F) hereto, there is no pending order, notice, claim, litigation, proceeding or investigation known to the Borrower against or affecting the Borrower or any Subsidiary, whether or not covered by insurance, that would in the aggregate involve the payment of $100,000.00 or more or would otherwise materially or adversely affect the financial condition or business prospects of the Borrower or any Subsidiary, considered as a whole, if adversely determined;
(G) The Borrower and each Subsidiary has good and marketable title to all of its material assets, none of which is subject to any security interest, encumbrance or lien, or claim of any third Person except for Permitted Liens;
(H) The Financial Statements, including any schedules and notes pertaining thereto, and the management prepared financial statements for the fiscal period ending March 31, 2008 have been prepared in accordance with GAAP, and fairly present the financial condition of the Borrower and the Subsidiaries at the dates thereof and the results of operations for the periods covered thereby, and there have been no material adverse changes in the financial condition or business of the Borrower and the Subsidiaries, considered as a whole, from March 31, 2008 to the date hereof;
(I) As of the date hereof, neither the Borrower nor any of the Subsidiaries has any material Indebtedness of any nature, including, but without limitation, liabilities for taxes and any interest or penalties relating thereto except to the extent reflected (in a footnote or otherwise) and reserved against in the consolidated balance sheet dated March 31, 2008, included in the Financial Statements or as disclosed in, or permitted by, this Agreement; and the Borrower does not know or have reasonable ground to know of any basis for the assertion against any of the Borrower or any Subsidiary of any such claim or litigation based upon such Indebtedness as of the date of the Closing except as disclosed on Exhibit 4.01(I) or otherwise disclosed to the Bank in writing;
(J) Except as otherwise permitted herein or as would not materially interfere with the conduct of the business of the Borrower and its Subsidiaries, considered as a whole, the Borrower has filed all tax returns or extensions to file tax returns in applicable jurisdictions, and other reports required by any applicable Laws to have been filed prior to the date hereof, have paid or caused to be paid all taxes, assessments and other governmental charges that are due and payable prior to the date hereof, and have made adequate provision for the payment of such taxes, assessments or other charges accruing but not yet payable; the Borrower has no knowledge of any deficiency or additional assessment in a materially important amount in connection with any taxes, assessments or charges not provided for on its books;
(K) Except to the extent that the failure to comply would not materially interfere with the conduct of the business of the Borrower and its Subsidiaries, considered as a whole, each of the Borrower and the Subsidiaries have complied with all applicable Laws with respect to (1) any restrictions, specifications or other requirements pertaining to products that it manufactures or sells or to the services it performs; (2) the conduct of its business; and (3) the use, maintenance and operation of the real and personal properties owned or leased by it in the conduct of its business;
(L) No representation or warranty by or with respect to the Borrower or any Subsidiary contained herein or in any certificate or other document furnished by the Borrower or any Subsidiary pursuant hereto contains any untrue statement of a material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made;
(M) Each consent, approval or authorization of, or filing, registration or qualification with, any Person required to be obtained or effected by the Borrower or any Subsidiary in connection with the execution and delivery of this Agreement, the Notes and the other Loan Documents or the undertaking or performance of any obligation hereunder or thereunder, has been duly obtained or effected;
(N) Except as set forth in Exhibit 4.01(N) and except to the extent that the failure to comply would not materially interfere with the conduct of the business of the Borrower or any Subsidiary, considered as a whole, to the best knowledge of the Borrower, neither the Borrower, nor any Person for whose conduct the Borrower is responsible, owns, occupies or operates, or has, within the fifteen (15) year period immediately preceding the date of this Agreement, owned, occupied or operated a site or vessel on which has been stored any hazardous material or oil, without compliance with all statues, regulations, ordinances, directives, and orders of every federal, state, municipal and other governmental authority which has or claims jurisdiction relative thereto (the terms “site,” “vessel” and “hazardous material,” respectively, as used herein include the definitions of those terms in Massachusetts General Laws, Ch. 21E); neither the Borrower, nor any Person for whose conduct the Borrower is responsible, has ever disposed of, transported or arranged for the transport of any hazardous material or oil without compliance with all such statutes, regulations, ordinances, directives and orders in all material respects; and neither the Borrower, nor any Person for whose conduct the Borrower is responsible, has ever been legally responsible for any releases or threat of release of any hazardous material or oil; received notification of any potential or known release or threat of release of any hazardous material or oil from any site or vessel owned, occupied or operated by the Borrower, or any Person for whose conduct the Borrower is responsible, or of the incurrence of any expense or loss in connection with the assessment, containment or removal of any release or threat of release of any hazardous material or oil from any such site or vessel;
(O) The Borrower has not made any agreement or taken any action which may cause anyone to become entitled to a commission or finder’s fee as a result of or in connection with the making of the Loans;
(P) The federal tax returns of the Borrower and all Subsidiaries for all years of operation, including the tax years of the Borrower and all Subsidiaries most recently ended prior to the date of this Agreement, have been filed with the Internal Revenue Service and have not been challenged or an extension for filing has been obtained; and
(Q) Any Employee Pension Benefit Plans, as defined in the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), of the Borrower and each Subsidiary meet, as of the date hereof, the minimum funding standards of 29 U.S.C.A. 1082 (Section 302 of ERISA), and no Reportable Event or Prohibited Transaction, as defined in ERISA, has occurred with respect to any Employee Benefit Plans, as defined in ERISA, of the Borrower or any Subsidiary.
Appears in 1 contract
Sources: Loan Agreement (Ipg Photonics Corp)
Original. To induce the Lender to enter into this Agreement, the Borrower represents and each Guarantor individually and collectively represent and warrant warrants to the Lender as follows:
(aA) The Borrower and the Guarantors are corporations is a corporation duly organized, validly existing, and in good standing under the Laws of the State of Delaware and is duly qualified to do business in the Commonwealth of Massachusetts; the Borrower and the Guarantors have has no Subsidiaries other than the Subsidiaries Subsidiary named in Exhibit 5.01(A); each Subsidiary is a corporation duly organized, validly existing, and in good standing under the Laws of ---------------- its state jurisdiction of incorporation, all as set forth in Exhibit 5.01(A); the Borrower, the Guarantors Borrower and the Subsidiaries Subsidiary have the --------------- lawful power to own their properties and to engage in the businesses they conduct, and each is duly qualified and in good standing as a foreign corporation in the jurisdictions wherein the nature of the business transacted by it or property owned by it makes such qualification necessary; the states in which the Borrower and each Guarantor and the Subsidiary are qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender in writing; the percentage of the Borrower's ownership --------------- of the Borrower and each Guarantor of the outstanding stock of each the Subsidiary is as listed in Exhibit 5.01(A); the ---------------- addresses of all places of business of the Borrower and each Guarantor and its Subsidiary are as set forth in Exhibit 5.01(A)) or otherwise disclosed to the Lender in writing; ---------------- except for Laser Merger Sub, Inc. in connection with neither the Merger, no Borrower, Guarantor or Borrower nor the Subsidiary has changed its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five (5) years and one (1) month prior to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------;
(bB) No Borrower, Guarantor or Neither the Borrower nor any Subsidiary is directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within the meaning of the Investment Company Act of 1940, as amended;
(cC) No Borrower, Guarantor or Neither the Borrower nor any Subsidiary is in default with respect to any of its existing Indebtedness, and the making and performance of this Agreement, the NotesNote, and the Collateral Documents will not and did not (immediately or with the passage of time, the giving of notice, or both):
(1) violate the Certificate of Incorporation or by-laws of the Borrower or any Subsidiary, or violate any Laws or result in a default under any contract, agreement, or instrument to which the Borrower or any Subsidiary is a party or by which the Borrower or any Subsidiary or its property is bound; or
(2) result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the assets of the Borrower or any Subsidiary except in favor of the Lender;
(D) The Borrower has the power and authority to enter into and perform this Agreement, the Note, and the Collateral Documents, and to incur the obligations herein and therein provided for, and has taken all actions necessary to authorize the execution, delivery, and performance of this Agreement, the Note, and the Collateral Documents;
(E) This Agreement, the Note, and the Collateral Documents are, or when delivered will be, valid, binding, and enforceable in accordance with their respective terms;
(F) Except as disclosed in Exhibit 5.01(F) hereto, there is no pending order, notice, claim, litigation, proceeding, or investigation against or affecting the Borrower or any Subsidiary, whether or not covered by insurance, that would in the aggregate involve the payment of $10,000.00 or more or would otherwise materially or adversely affect the financial condition or business prospects of the Borrower or any Subsidiary if adversely determined;
(G) The Borrower and its Subsidiary have good and marketable title to all of their assets, none of which is subject to any security interest, encumbrance or lien, or claim of any third Person except for Permitted Liens;
(H) The Financial Statements, including any schedules and notes pertaining thereto, have been prepared in accordance with GAAP, and fully and fairly present the financial condition of the Borrower and its Subsidiary at the dates thereof and the results of operations for the periods covered thereby, and there have been no material adverse changes in the consolidated financial condition or business of the Borrower and its Subsidiary from September 30, 1996, to the date hereof;
(I) As of the date hereof, the Borrower and its Subsidiary have no material Indebtedness of any nature, including, but without limitation, liabilities for taxes and any interest or penalties relating thereto except to the extent reflected (in a footnote or otherwise) and reserved against in the consolidated balance sheet dated September 30, 1996 included in the Financial Statements or as disclosed in, or permitted by, this Agreement; and the Borrower does not know or have reasonable ground to know of any basis for the assertion against it or any Subsidiary of any claim or litigation related to such Indebtedness as of the date of the Closing except as disclosed on Exhibit 5.01(F) or otherwise disclosed to the Lender in writing;
(J) Except as otherwise permitted herein, the Borrower has filed all federal, state, and local tax returns and other reports required by any applicable Laws to have been filed prior to the date hereof, has paid or caused to be paid all taxes, assessments, and other governmental charges that are due and payable prior to the date hereof, and has made adequate provision for the payment of such taxes, assessments, or other charges accruing but not yet payable; the Borrower has no knowledge of any deficiency or additional assessment in a materially important amount in connection with any taxes, assessments, or charges not provided for on its books;
(K) Except to the extent that the failure to comply would not materially interfere with the conduct of the business of the Borrower or any Subsidiary, the Borrower and its Subsidiary have each complied with all applicable Laws with respect to (1) any restrictions, specifications, or other requirements pertaining to products that it manufactures or sells or to the services it performs; (2) the conduct of its business; and (3) the use, maintenance, and operation of the real and personal properties owned or leased by it in the conduct of its business;
(L) No representation or warranty by or with respect to the Borrower or any Subsidiary contained herein or in any certificate or other document furnished by the Borrower or any Subsidiary pursuant hereto contains any untrue statement of a material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made;
(M) Each consent, approval or authorization of, or filing, registration or qualification with, any Person required to be obtained or effected by the Borrower, any Subsidiary, or any guarantor in connection with the execution and delivery of this Agreement, the Note, and the Collateral Documents or the undertaking or performance of any obligation hereunder or thereunder has been duly obtained or effected;
(N) There is no Indebtedness of the Borrower or any Subsidiary: (1) for money borrowed, or (2) under any security agreement, mortgage or agreement covering the lease by the Borrower or any Subsidiary as lessee of real or personal property except as reflected in the Financial Statements or as described in Exhibit 5.01(N);
(O) Except as described in Exhibit 5.01(O), attached hereto, or otherwise disclosed to the Lender in writing, (a) neither the Borrower nor any Subsidiary has any material leases, contracts, or commitments of any kind (including, without limitation, employment agreements; collective bargaining agreements; powers of attorney; distribution arrangements; licenses, patents, copyrights, trademarks, service marks or license agreements; contracts for future purchase or delivery of Goods or rendering of services; bonuses, pension, and retirement plans; or accrued vacation pay, insurance, and welfare agreements); (b) to the best of Borrower's knowledge, all parties to all such material leases, contracts, and other commitments to which the Borrower or any Subsidiary is a party have complied with the provisions of such leases, contracts, and other commitments; and (c) to the best of Borrower's knowledge, no party is in default under any term thereof and no event has occurred which, but for the giving of notice or the passage of time, or both, would constitute a default;
(P) The Borrower has not made any agreement or taken any action which may cause anyone to become entitled to a commission or finder's fee as a result of or in connection with the making of the Loan;
(Q) The Borrower's consolidated federal tax returns for all years of operation, including the year ended September 30, 1996, have been filed with the Internal Revenue Service and have not been challenged;
(R) Any Employee Pension Benefit Plans, as defined in the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of the Borrower and each Subsidiary meet, as of the date hereof, the minimum funding standards of 29 U.S.C.A. 1082 (Section 302 of ERISA), and no Reportable Event or Prohibited Transaction, as defined in ERISA, has occurred with respect to any Employee Benefit Plans, as defined in ERISA, of the Borrower or any Subsidiary;
(S) The liens and security interests created pursuant to Sections 4.02 and 4.03 are and will be at the Closing in all cases first and prior liens except for Permitted Liens;
(T) Except as shown on Exhibit 1.19, Borrower has no patent claims, trademark or copyright registrations or other filings or applications protecting its Intellectual Property in any jurisdiction; and
(U) The Borrower is in full compliance with all of its tenant obligations under that certain Commercial Lease dated December 19, 1995 between the Borrower and ▇▇▇▇▇▇▇▇ Properties Management, Inc.; the Landlord's Consent and Waiver dated as of April 4, 1996 among the Borrower, ▇▇▇▇▇▇▇▇ Properties Management, Inc. and the Lender is in full force and effect; and the Borrower knows of no default under the Commercial Lease.
Appears in 1 contract
Sources: Demand Line of Credit Loan and Security Agreement (Vivid Technologies Inc)
Original. To induce the Lender Banks to enter into this Agreement, the Borrower and each Guarantor individually Subsidiary jointly and collectively severally represent and warrant to each Bank as of the Lender Closing and initial funding hereunder as follows:
(aA) The Borrower and the Guarantors are corporations is a corporation duly organized, validly existing, existing and in good standing under the Laws of the Commonwealth State of Massachusetts; the Borrower and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A)Delaware; each Subsidiary is a corporation duly organized, validly existing, existing and in good standing under the Laws of ---------------- its state of incorporation, all as set forth in Exhibit 5.01(A)H; the Borrower, the Guarantors Borrower and the Subsidiaries each Subsidiary have the --------------- lawful power to own their properties and to engage in the businesses business they conduct, and each is duly qualified and in good standing as a foreign corporation in the jurisdictions wherein the nature of the business transacted by it or property owned by it is both material and makes such qualification necessary; the states in which the Borrower and each Guarantor and Subsidiary are qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender in writingH; the percentage of the Borrower's ownership --------------- of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as listed in Exhibit 5.01(A)H; and the ---------------- addresses of all places of business of the Borrower and each Guarantor and Subsidiary are as set forth in Exhibit 5.01(A); ---------------- except for Laser Merger Sub, Inc. in connection with the Merger, no Borrower, Guarantor or Subsidiary has changed its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five (5) years and one (1) month prior to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------
(b) No Borrower, Guarantor or Subsidiary is directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within the meaning of the Investment Company Act of 1940, as amendedI;
(cB) No Borrower, Guarantor or Neither the Borrower nor any Subsidiary is in default with respect to any of its existing Indebtedness, and the making and performance of this Agreement, the Notes, Notes and the Collateral Documents will not and did not (immediately immediately, or with the passage of time, time or the giving of notice, or both):
(1) Violate the charter or bylaw provisions of the Borrower or any Subsidiary, or violate any Laws (except with respect to the assignment of Accounts due from Medicare and Medicaid), or result in a default under any material contract, agreement, or instrument to which the Borrower or any Subsidiary is a party or by which the Borrower or any Subsidiary or its property is bound; or
(2) Result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the assets of the Borrower or any Subsidiary, except in favor of the Banks;
(C) The Borrower and each Subsidiary have the power and authority to enter into and perform this Agreement, the Notes and the Collateral Documents, as applicable, and to incur the Obligations herein and therein provided for, and have taken all corporate action necessary to authorize the execution, delivery, and performance of this Agreement, the Notes and the Collateral Documents;
(D) This Agreement and the Collateral Documents are, and the Notes when delivered will be, valid, binding, and enforceable in accordance with their respective terms subject to the general principles of equity (regardless of whether such question is considered in a proceeding in equity or at law) and to applicable bankruptcy, insolvency, moratorium, fraudulent or preferential conveyance and other similar laws affecting generally the enforcement of creditors' rights;
(E) The Pledgors own the Pledged Stock; the Pledged Stock constitutes one hundred percent (100%) of the issued and outstanding capital stock of the respective issuers thereof; and the Pledged Stock has been duly issued, is fully paid and non-assessable, and except as disclosed in Exhibit J is free of all claims, security interests, liens, charges and encumbrances;
(F) Except as disclosed in Exhibit K hereto, there is no pending or threatened order, notice, claim, litigation, proceeding or investigation against or affecting the Borrower or any Subsidiary, whether or not covered by insurance, that would involve the pay ment of One Hundred Thousand Dollars ($100,000.00) or more if adversely determined;
(G) The Borrower and its Subsidiaries have good and marketable title to all of their respective assets, including without limitation the Collateral and the Real Property, subject to no security interest, encumbrance or lien, or the claims of any other Person except for Permitted Liens;
(H) The Financial Statements, including any schedules and notes pertaining thereto, have been prepared in accordance with generally accepted accounting principles consistently applied, and fully and fairly present the financial condition of the Borrower and its Subsidiaries at the dates thereof and the results of operations for the periods covered thereby, and there have been no Material Adverse Change in the consolidated financial condition or business of the Borrower and its Subsidiaries from December 31, 1995 to the date hereof;
(I) As of the date hereof, the Borrower and its Subsidiaries had no Indebtedness of any nature, including, but without limitation, liabilities for taxes and any interest or penalties relating thereto, except to the extent reflected (in a footnote or otherwise) and reserved against in the December 31, 1995 Financial Statements or as disclosed in or permitted by this Agreement; the Borrower does not know, and has no knowledge of any basis for the assertion against it or any Subsidiary as of the date hereof, of any material Indebtedness of any nature not fully reflected and reserved against in the December 31, 1995 Financial Statements;
(J) Except as otherwise permitted herein, the Borrower and its Subsidiaries have filed all federal, state and local tax returns and other reports they are required by Laws to file prior to the date hereof and which are material to the conduct of their respective businesses, have paid or caused to be paid all taxes, assessments and other governmental charges that are due and payable prior to the date hereof, and have made adequate provision for the payment of such taxes, assessments or other charges accruing but not yet payable; the Borrower has no knowledge of any deficiency or additional assessment in connection with any taxes, assessments or charges not provided for on its books;
(K) Except as otherwise disclosed in Exhibit L hereto, or except to the extent that the failure to comply would not have a Material Adverse Effect on the Borrower or any Subsidiary, the Borrower and its Subsidiaries have complied in all material respects with all applicable Laws with respect to: (1) any restrictions, specifications, or other requirement pertaining to services that the Borrower or any Subsidiary performs, including Fraud and Abuse Law; (2) the conduct of their respective businesses; (3) the use, maintenance, and operation of the real and personal properties owned or leased by them in the conduct of their respective businesses; and (4) health, safety, worker's compensation, and equal employment opportunity;
(L) The Borrower and its Subsidiaries and their respective assets and operations are in compliance in all material respects with all Environmental Laws, and the Borrower and its Subsidiaries will comply in all material respects with all such Environmental Laws and regulations which may be imposed in the future; all plants, facilities and properties owned by the Borrower and its Subsidiaries are and will be on the date of Closing in a clean and healthful condition, free of asbestos and of all contamination by Hazardous Materials and other potentially harmful chemical or physical conditions, including, without limitation, any contamination of the air, soil, groundwater or surface waters associated with or adjacent to such plants, facilities and properties; all storage tanks (whether above or below ground) located in or on such plants, facilities and properties are in sound condition, free or corrosion or leaks that could allow or threaten the release of any stored material; no Hazardous Materials have been or are used, stored, treated or disposed of in violation of applicable Laws and regulations; and neither the Borrower nor any Subsidiary is a defendant in any administrative or judicial action alleging liability under the Comprehensive Environmental Response, Compensation and Liability Act, as amended ("CERCLA"), nor has the Borrower or any Subsidiary received a notice that it is a potentially responsible party under CERCLA or similar state Laws.
(M) No representation or warranty by the Borrower or any Subsidiary contained herein or in any certificate or other document furnished by the Borrower or any Subsidiary pursuant to this Agreement contains any untrue statement of material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made;
(N) Each consent, approval or authorization of, or filing, registration or qualification with, any Person required to be obtained or effected by the Borrower or any Subsidiary in connection with the execution and delivery of the Loan Documents or the undertak ing or performance of any obligation thereunder has been duly obtained or effected;
(O) All existing Indebtedness: (1) for money borrowed; or (2) under any security agreement or mortgage from the Borrower or any Subsidiary is described in Exhibit B, unless the same are immaterial (i.e., less than $25,000.00 in amount);
(P) Except as described on Exhibit M hereto, the Borrower and its Subsidiaries have no material lease, contract or commitment of any kind (such as employment agreements; collective bargaining agreements; powers of attorney; distribution arrangements; patent license agreements; contracts for future purchase or delivery of goods or rendering of services; bonus, pension and retirement plans; or accrued vacation pay, insurance and welfare agreements) which would be required to be listed as an Exhibit to the Borrower's Annual Report on Form 10-K; all parties (including the Borrower and Subsidiaries) to all such material leases, contracts and other commitments to which the Borrower or any Subsidiary is a party have complied with the provisions of such leases, contracts and other commitments; no party is in default under any provision thereof; and no event has occurred which, but for the giving of notice or the passage of time, or both, would constitute a default;
(Q) Neither the Borrower nor any Subsidiary has made any agreement or has taken any action which may cause anyone to become entitled to a commission or finder's fee as a result of the making of the Loans;
(R) All Defined Benefit Pension Plans, as defined in the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of the Borrower and each Subsidiary meet, as of the date hereof, the minimum funding standards of Section 302 of ERISA, and no Reportable Event or Prohibited Transaction, as defined in ERISA, has occurred with respect to any such Plan.
Appears in 1 contract
Sources: Revolving Loan and Security Agreement (Specialty Care Network Inc)
Original. To induce the Lender to enter into this Agreement, the Borrower Borrowers jointly and each Guarantor individually and collectively severally represent and warrant to the Lender as follows:
12 14 (a) The Each Borrower and the Guarantors are corporations duly organized, validly existing, and in good standing under the Laws of the Commonwealth of Massachusetts; the Borrower and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A); each Subsidiary is a corporation duly organized, validly existing, and in good standing under the Laws of ---------------- its the state of its incorporation; no Borrower has any Subsidiaries, all except as set forth in Exhibit 5.01(A)5.1
(a) attached hereto; each Borrower has the Borrower, the Guarantors and the Subsidiaries have the --------------- lawful power to own their its properties and to engage in the businesses they conduct, business it conducts and each is duly qualified and in good standing as a foreign corporation in the jurisdictions wherein the nature of the business transacted by it or property owned by it makes such qualification necessary; the states in which the each Borrower and each Guarantor and Subsidiary are is qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender in writing; the percentage of ownership --------------- of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as listed in Exhibit 5.01(A5.1(a); the ---------------- identity of each shareholder of each Borrower (except for SpecTran) and the number of shares owned by each is set forth in Exhibit 5.1(a); and the addresses of all places of business of the each Borrower and each Guarantor and Subsidiary are as set forth in Exhibit 5.01(A5.1(a); ---------------- except for Laser Merger Sub, Inc. in connection with the Merger, no Borrower, Guarantor or Subsidiary has changed its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five (5) years and one (1) month prior to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------;
(b) No Borrower, Guarantor or Subsidiary Borrower is directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within the meaning of the Investment Company Act of 1940, as amended;
(c) No Borrower, Guarantor or Subsidiary Borrower is in default with respect to any of its existing IndebtednessConsolidated Liabilities, and the making and performance of this Agreement, the Notes, Revolving Note and the Collateral Documents will not and did not (immediately or with the passage of time, the giving of notice, or both):
(i) Violate the charter or by-laws of any Borrower, or violate any Laws or result in a default under any contract, agreement, or instrument to which any Borrower is a party or by which any Borrower or its property is bound; or
(ii) Result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the Consolidated Assets of any Borrower, except as set forth in the Collateral Documents;
(d) Each Borrower to the extent applicable to it, has the power and authority to enter into and perform this Agreement, the Revolving Note and the Collateral Documents, and to incur the obligations herein and therein provided for, and has taken all actions necessary to authorize the execution, delivery, and performance of this Agreement, the Revolving Note and the Collateral Documents;
(e) This Agreement, the Revolving Note and the Collateral Documents are, or when delivered will be, valid, binding, and enforceable in accordance with their respective terms, except to the extent enforceability is subject to the exercise of judicial discretion in accordance with general equitable principles and to applicable bankruptcy, insolvency, reorganization, moratorium or other laws for the relief of debtors heretofore or hereafter enacted;
(f) Except as disclosed on Exhibit 5.1(f) attached hereto, there is no pending order, notice, claim (other than claims arising in the ordinary course of business for amounts not exceeding $25,000.00 individually or $100,000.00 in the aggregate), litigation, proceeding, or investigation against or affecting any Borrower, whether or not covered by insurance;
Appears in 1 contract
Sources: Loan Agreement (Spectran Corp)
Original. To induce the Lender Bank to enter into this Agreement, the Borrower represents and each Guarantor individually and collectively represent and warrant warrants to the Lender Bank as follows:
(aA) The Borrower and the Guarantors are corporations duly organized, validly existing, and in good standing under the Laws of the Commonwealth of Massachusetts; the Borrower and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A); each Subsidiary is a corporation duly organized, validly existing, and in good standing under the Laws laws of ---------------- the State of Delaware; as of the date of this Agreement, the Borrower has no Subsidiaries other than the Subsidiaries named in Exhibit 4.01(A); as of the date of this Agreement, each Subsidiary is duly organized, validly existing and in good standing under the laws of its state or nation of incorporationformation, all as set forth in Exhibit 5.01(A4.01(A); the Borrower, the Guarantors Borrower and the Subsidiaries have the --------------- lawful power to own their properties and to engage in the businesses they conduct, and each is duly qualified and in good standing as a foreign corporation in the jurisdictions wherein the nature of the business transacted by it or property owned by it makes such qualification necessary; necessary (except where failure to so qualify would not have a material adverse effect on the states in which the Borrower and each Guarantor and Subsidiary are qualified to do business are set forth in Exhibit 5.01(A) business, assets or otherwise disclosed to the Lender in writing; the percentage of ownership --------------- financial condition of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is its Subsidiaries taken as listed in Exhibit 5.01(Aa whole); the ---------------- addresses of all places of business of ;
(B) Neither the Borrower and each Guarantor and Subsidiary are as set forth in Exhibit 5.01(A); ---------------- except for Laser Merger Sub, Inc. in connection with the Merger, no Borrower, Guarantor or Subsidiary has changed its name, been the surviving corporation in a merger, acquired nor any business, or changed its principal executive office within five (5) years and one (1) month prior to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------
(b) No Borrower, Guarantor or Subsidiary is directly or indirectly controlled by, or acting on behalf of, any Person which is an "“Investment Company", ,” within the meaning of the Investment Company Act of 1940, as amended;
(cC) No BorrowerExcept as disclosed in Exhibit 4.01(C) attached hereto, Guarantor or neither the Borrower nor any Subsidiary is in default with respect to any of its existing IndebtednessIndebtedness in any material respect, and which such default would constitute an Event of Default under Section 6.01(C), and the making and performance of this Agreement, the Notes, Notes and the Collateral other Loan Documents will not and did not (immediately or with the passage of time, the giving of notice, or both):
(1) Violate (a) charter documents or the By-Laws of the Borrower or any Subsidiary, or (b) any Laws or result in a default, in any material respect, under any contract, agreement or instrument to which the Borrower or any Subsidiary is a party or by which the Borrower or any Subsidiary or its property is bound (except where such violation or default would not have a material adverse effect on the business, assets or financial condition of the Borrower and its Subsidiaries taken as a whole); or
(2) Result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the assets of the Borrower or any Subsidiary except in favor of 4836-5989-2149.7 the Bank (except where such occurrence would not have a material adverse effect on the business assets or financial condition of the Borrower and its Subsidiaries taken as a whole);
Appears in 1 contract
Sources: Loan Agreement (Ipg Photonics Corp)
Original. To induce the Lender to enter into this Agreement, the Borrower represents and each Guarantor individually and collectively represent and warrant warrants to the Lender as follows:
(a) The Borrower and the Guarantors are corporations is a corporation duly organized, validly existing, and in good standing under the Laws of the Commonwealth of Massachusetts; the Borrower and the Guarantors have has no Subsidiaries other than except the Subsidiaries named in Exhibit 5.01(A); each Subsidiary is a corporation duly organizedGuarantor and Seva Technologies, validly existing, and in good standing under the Laws of ---------------- its state of incorporation, all as set forth in Exhibit 5.01(A)Inc.; the Borrower, Borrower has the Guarantors and the Subsidiaries have the --------------- lawful power to own their its properties and to engage in the businesses they conductbusiness it conducts, and each is duly qualified and in good standing as a foreign corporation in the jurisdictions wherein the nature of the business transacted by it or property owned by it makes such qualification necessaryfailure to so qualify would have a material adverse effect; the states in which the Borrower and each Guarantor and Subsidiary are is qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender in writing; the percentage of ownership --------------- of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as listed in Exhibit 5.01(A5.1(a); and the ---------------- addresses of all places of business of the Borrower and each Guarantor and Subsidiary are as set forth in Exhibit 5.01(A5.1(a); ---------------- except for Laser Merger Sub, Inc. in connection with the Merger, no Borrower, Guarantor or Subsidiary has changed its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five (5) years and one (1) month prior which may be amended and/or supplemented from time to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------time;
(b) No Borrower, Guarantor or Subsidiary The Borrower is not directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within the meaning of the Investment Company Act of 1940, as amended;
(c) No Borrower, Guarantor or Subsidiary The Borrower is not in default with respect to any of its existing Indebtednessmaterial Liabilities, and the making and performance of this Agreement, the Notes, and the Collateral Documents will not and did not (immediately or with the passage of time, the giving of notice, or both):
(i) Violate the Articles of Organization or by-laws of the Borrower or violate any Laws or result in a default under any material contract, agreement, or instrument to which the Borrower is a party or by which the Borrower or its property is bound;
(ii) Result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the assets of the Borrower, except in favor of the Lender;
(d) The Borrower has the power and authority to enter into and perform this Agreement, the Notes, and the Collateral Documents, and to incur the obligations herein and therein provided for, and has taken all actions necessary to authorize the execution, delivery, and performance of this Agreement, the Notes, and the Collateral Documents;
(e) This Agreement, the Notes, and the Collateral Documents are, or when delivered will be, valid, binding, and enforceable in accordance with their respective terms;
(f) Except as disclosed in Exhibit 5.1(f) hereto, there is no pending order, notice, claim, litigation, proceeding, or investigation against or affecting the Borrower, whether or not covered by insurance, that would reasonably be expected to adversely affect the financial condition of the Borrower if adversely determined;
(g) Except as disclosed in Exhibit 5.1
Appears in 1 contract
Original. To induce the Lender BANK to enter into this AgreementAGREEMENT, the Borrower BORROWER represents and each Guarantor individually and collectively represent and warrant warrants to the Lender BANK as follows:
(a) A. The Borrower and the Guarantors are corporations duly organized, validly existing, and in good standing under the Laws of the Commonwealth of Massachusetts; the Borrower and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A); each Subsidiary BORROWER is a corporation duly organized, validly existing, and in good standing under the Laws LAWS of ---------------- its state the State of incorporation, all as set forth in Exhibit 5.01(A)Delaware; the Borrower, BORROWER has no subsidiaries except for a $350,000.00 investment in the Guarantors and BORROWER'S Hong Kong subsidiary; the Subsidiaries have BORROWER has the --------------- lawful power to own their its properties and to engage in the businesses they conduct, it conducts and each is duly qualified and in good standing as a foreign corporation in the jurisdictions wherein the nature of the business transacted by it or property owned by it makes make such qualification necessary; the states in which the Borrower and each Guarantor and Subsidiary are BORROWER is qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender BANK in writing; the percentage of ownership --------------- of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as listed in Exhibit 5.01(A); the ---------------- addresses of all places of business of the Borrower BORROWER are disclosed to the BANK in writing; and each Guarantor and Subsidiary are as set forth in Exhibit 5.01(A); ---------------- except for Laser Merger Sub, Inc. in connection with the Merger, no Borrower, Guarantor or Subsidiary BORROWER has changed its name, not been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five (5) years and one (1) month prior to the date hereof hereof, nor acquired any assets from a transferor which remain subject to a security interest granted by such transferor within one (1) year prior to the date hereof, nor moved any COLLATERAL to its present location from another State where it was subject to a security interest granted to another entity, except as is set forth in an Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------hereto;
(b) No Borrower, Guarantor or Subsidiary B. The BORROWER is not directly or indirectly controlled by, or acting on behalf of, any Person PERSON which is an "Investment Company", " within the meaning of the Investment Company Act of 1940, as amended;
(c) No Borrower, Guarantor or Subsidiary C. The BORROWER is not in default with respect to any of its existing IndebtednessINDEBTEDNESS, and the making and performance of this Agreement, the Notes, AGREEMENT and the Collateral Documents COLLATERAL DOCUMENTS will not and did not (immediately or with the passage of time, the giving of notice, or both):
1. Violate the articles of incorporation or by-laws of the BORROWER, or violate any laws or result in a default under any contract, agreement, or instrument to which the BORROWER is a party or by which the BORROWER or its property is bound; or
2. Result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the assets of the BORROWER except in favor of the BANK;
D. The BORROWER has the power and authority to enter into and perform this AGREEMENT, the NOTES, and the COLLATERAL DOCUMENTS, and to incur the obligations herein and therein provided for, and has taken all actions necessary to authorize the execution, delivery, and performance of this AGREEMENT, the NOTES, and the COLLATERAL DOCUMENTS;
E. This AGREEMENT, the NOTES, and the COLLATERAL DOCUMENTS are, or when delivered will be, valid, binding, and enforceable in accordance with their respective terms;
F. There is no pending order, notice, claim, litigation, proceeding, or litigation against or affecting the BORROWER, whether or not covered by insurance, that would materially or adversely affect the financial condition or business prospects of the BORROWER if adversely determined;
G. The BORROWER has good and marketable title to all of its assets, none of which is subject to any security interest, encumbrance or lien, or claim of any third PERSON except for PERMITTED LIENS;
H. The FINANCIAL STATEMENTS, including any schedules and notes pertaining thereto, have been prepared in accordance with GAAP, and fully and fairly present the financial condition of the BORROWER at the dates thereof and the results of operations for the periods covered thereby, and there have been no material adverse changes in the consolidated financial condition or business of the BORROWER from December 31, 2000, to the date hereof;
I. As of the date hereof the BORROWER has no material INDEBTEDNESS of any nature, including but without limitation, liabilities for taxes and any interest or penalties relating thereto except to the extent reflected (in a footnote or otherwise) in the FINANCIAL STATEMENT or as disclosed in, or permitted by, this agreement; and the BORROWER does not know or have reasonable ground to know of any basis for the assertion against it of any such INDEBTEDNESS as of the date of the CLOSING;
J. Except as otherwise permitted herein, the BORROWER has filed all federal, state, and local tax returns and other reports required by an applicable LAWS to have been filed prior to the date hereof, has paid or caused to be paid all taxes, assessments, and other governmental charges that are due and payable prior to the date hereof, and has made adequate provisions for the payment of such taxes, assessments, or other charges accruing but not yet payable; the BORROWER has no knowledge of any deficiency or additional assessment in a materially important amount in connection with any taxes, assessments, or charges not provided for on its books;
K. Except to the extent that the failure to comply would not materially interfere with the conduct of the business of the BORROWER, the BORROWER has complied with all applicable LAWS with respect to (1) any restrictions, specifications, or other requirements pertaining to products that it manufactures or sells or to the services it performs; (2) the conduct of its business; and (3) the use, maintenance, and operation of the real and personal properties owned or leased by it in the conduct of its business;
L. No representation or warranty by or with respect to the BORROWER contained herein or in any certificate or other document furnished by the BORROWER pursuant hereto contains any untrue statement of a material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made;
M. Each consent, approval or authorization of, or filing, registration or qualification with, any PERSON required to be obtained or effected by the BORROWER in connection with the execution and delivery of this AGREEMENT, any NOTE, and the COLLATERAL DOCUMENTS or the undertaking or performance of any obligation hereunder or thereunder has been duly obtained or effected;
N. All existing INDEBTEDNESS of the BORROWER: (1) for money borrowed, or (2) under any security agreement, mortgage, or agreement covering the lease by the BORROWER as lessee of real or personal property is described in a writing delivered to BANK this date;
O. Except as disclosed to the BANK in writing (1) the BORROWER has no material leases, contracts, or commitments of any kind (including, without limitation, employment agreements, collective bargaining agreements, powers of attorney, distribution arrangements, patent license agreements, contracts for future purchase or delivery of goods or rendering of services, bonuses, pension, and retirement plans accrued vacation pay, insurance and welfare agreements); (2) to the best of BORROWER's knowledge, all parties to all such material leases, contracts and other commitments to which the BORROWER is a party have complied with the provisions of such leases, contracts, and other commitments; and (3) to the best of BORROWER's knowledge, no party is in default under any provisions thereof and no event has occurred which, but for the giving of notice or the passage of time, or both, would constitute a default;
P. The BORROWER has not made any agreement or taken any action which may cause anyone to become entitled to a commission or finder's fee as a result of or in connection with the making of this AGREEMENT;
Q. Any federal tax returns for all years of operation, including the last tax year for BORROWER have been filed with the Internal Revenue Service and have not been challenged;
R. Any Employee Pension Benefit Plans, as defined in the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of the BORROWER meet, as of the date hereof, the minimum funding standards of 29 U.S.C. Sec. 1082 (Sec. 302 of ERISA), and no Reportable Event or Prohibited Transaction as defined in ERISA, has occurred with respect to any Employee Benefit Plans, as defined in ERISA, of the BORROWER; S. The liens and security interests created pursuant to Section IV of this AGREEMENT, including any separate real estate liens granted in connection herewith, are in all cases first and prior liens except for PERMITTED LIENS;
Appears in 1 contract
Original. To induce the Lender Banks to enter into this Agreement, the Borrower and each Guarantor individually Subsidiary jointly and collectively severally represent and warrant to the Lender each Bank as follows:
(aA) The Borrower and the Guarantors are corporations is a corporation duly organized, validly existing, existing and in good standing under the Laws of the Commonwealth State of Massachusetts; the Borrower and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A)Tennessee; each Subsidiary is a corporation duly organized, validly existing, existing and in good standing under the Laws of ---------------- its state of incorporation, all as set forth in Exhibit 5.01(A)EXHIBIT E; the Borrower, the Guarantors Borrower and the Subsidiaries each Subsidiary have the --------------- lawful power to own their properties and to engage in the businesses business they conduct, and each is duly qualified and in good standing as a foreign corporation in the jurisdictions wherein the nature of the business transacted by it or property owned by it makes such qualification necessary; the states in which the Borrower and each Guarantor and Subsidiary are qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender in writingEXHIBIT F; the percentage of the Borrower's ownership --------------- of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as listed in Exhibit 5.01(A)EXHIBIT G; the ---------------- addresses of all places of business of neither the Borrower and each Guarantor and Subsidiary are as set forth in Exhibit 5.01(A); ---------------- except for Laser Merger Sub, Inc. in connection with the Merger, no Borrower, Guarantor or nor any Subsidiary has changed its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five (5) years and one (1) month prior to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorizedsince April 21, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary1994, except as set forth in Exhibit 5.01(A)EXHIBIT H; ---------------
(b) No Borrower, Guarantor or Subsidiary is directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within and the meaning addresses of all places of business of the Investment Company Act of 1940, Borrower and each Subsidiary are as amendedset forth in EXHIBIT I;
(cB) No Borrower, Guarantor or Neither the Borrower nor any Subsidiary is in material default with respect to any of its existing Indebtedness, and the making and performance of this Agreement, the Notes, Notes and the Collateral other Loan Documents will not and did not (immediately immediately; or with the passage of time, time or the giving of notice, or both):
(1) Violate the charter or bylaw provisions of the Borrower or any Subsidiary, or violate any Laws or result in a default under any contract, agreement, or instrument to which the Borrower or any Subsidiary is a party or by which the Borrower or any Subsidiary or its property is bound; or
(2) Result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the assets of the Borrower or any Subsidiary;
(C) The Borrower and each Subsidiary have the power and authority to enter into and perform this Agreement, the Notes and the other Loan Documents, as applicable, and to incur the Obligations herein and therein provided for, and have taken all corporate action necessary to authorize the execution, delivery, and performance of this Agreement, the Notes and the other Loan Documents;
(D) This Agreement and the other Loan Documents are, and the Notes when delivered will be, valid, binding, and enforceable in accordance with their respective terms;
(E) Except as disclosed in EXHIBIT J hereto, there is no pending or, to Borrower's knowledge, threatened order, notice, claim, litigation, proceeding or investigation against or affecting the Borrower or any Subsidiary, whether or not covered by insurance, that would involve the payment by Borrower or any Subsidiary of Fifty Thousand Dollars ($50,000.00) or more if adversely determined (upon request by the Agent, the Borrower shall provide the Agent with copies of all pleadings and other documents filed in any of the matters disclosed in EXHIBIT J);
(F) The Borrower and its Subsidiaries have good and marketable title to all of their respective assets, including without limitation the Real Property, and the Real Property is subject to no security interest, encumbrance or lien, or the claims of any other Person except for Permitted Liens;
(G) The Financial Statements, including any schedules and notes pertaining thereto, have been prepared in accordance with GAAP, and fully and fairly present in all material respects the financial condition of the Borrower and its Subsidiaries at the dates thereof and the results of operations for the periods covered thereby, and there have been no material adverse changes in the financial condition or business of the Borrower and its Subsidiaries taken as a whole from July 14, 1996, to the date hereof;
(H) Since July 14, 1996, the Borrower and its Subsidiaries had no material Indebtedness of any nature, including, but without limitation, liabilities for taxes and any interest or penalties relating thereto, except to the extent reflected (in a footnote or otherwise) and reserved against in the Financial Statements dated July 14, 1996, or as disclosed in or permitted by this Agreement; the Borrower does not know, and has no knowledge of any basis for the assertion against it or any Subsidiary, of any material Indebtedness of any nature not fully reflected and reserved against in the Financial Statements;
(I) Except as otherwise permitted herein, the Borrower and its Subsidiaries have filed all federal, state and local tax returns and other reports they are required by Laws to file prior to the date hereof and which are material to the conduct of their respective businesses, have paid or caused to be paid all taxes, assessments and other governmental charges that are due and payable prior to the date hereof, and have made adequate provision for the payment of such taxes, assessments or other charges accruing but not yet payable; the Borrower has no knowledge of any deficiency or additional assessment in a materially important amount in connection with any taxes, assessments or charges not provided for on its books;
(J) Except as otherwise disclosed in EXHIBIT K hereto, or except to the extent that the failure to comply would not materially interfere with the conduct of the business of the Borrower and its Subsidiaries taken as a whole, the Borrower and its Subsidiaries have complied, in all material respects, with all applicable Laws with respect to: (1) any restrictions, specifications, or other requirement pertaining to products that the Borrower or any Subsidiary sells or to the services each performs; (2) the conduct of their respective businesses; (3) the use, maintenance, and operation of the Real Property and the personal properties owned or leased by them, in the conduct of their respective businesses; and (4) health, safety, worker's compensation, and equal employment opportunity;
(K) The Borrower and its Subsidiaries and their respective assets and operations are in compliance in all material respects with all Environmental Laws, and the Borrower and its Subsidiaries will comply, in all material respects, with all such Environmental Laws and regulations which may be imposed in the future; all facilities and properties of the Borrower and its Subsidiaries are and will be on the date of Closing, in all material respects, in a clean and healthful condition, free of asbestos and of all contamination by Hazardous Materials and other potentially harmful chemical or physical conditions, including, without limitation, any contamination of the air, soil, groundwater or surface waters associated with such facilities and properties; there are no storage tanks (whether above or below ground) located in or on such facilities and properties; no Hazardous Materials intended for use or generated at any such facilities or properties have been or are used, stored treated or disposed of in violation of applicable Laws and regulations; all Hazardous Material which have been removed, released or emitted from any of such facilities or properties were and are documented, transported and disposed of in compliance in all material respects with all applicable Laws and regulations; and neither the Borrower nor any Subsidiary is a defendant in any administrative or judicial action alleging liability under the Comprehensive Environmental Response, Compensation and Liability Act, as amended ("CERCLA"), or any other Environmental Law, nor has the Borrower or any Subsidiary received a notice that it is a potentially responsible party under CERCLA, similar state Laws, or any other Environmental Law;
(L) No representation or warranty by the Borrower or any Subsidiary contained herein or in any Exhibit furnished by the Borrower or any Subsidiary pursuant to this Agreement contains any untrue statement of material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made;
(M) Each consent, approval or authorization of, or filing, registration or qualification with, any Person required to be obtained or effected by the Borrower or any Subsidiary in connection with the execution and delivery of the Loan Documents or the undertaking or performance of any obligation thereunder has been duly obtained or effected;
(N) All existing Indebtedness of the Borrower or any Subsidiary: (1) for money borrowed; or (2) under any security agreement, mortgage, or agreement covering the lease of real or personal property by the Borrower or any Subsidiary as lessee, is described in EXHIBIT L;
(O) All lease agreements for restaurant facilities operated by Borrower are described on EXHIBIT M hereto;
(P) Neither the Borrower nor any Subsidiary has made any agreement or has taken any action which may cause anyone to become entitled to a commission or finder's fee as a result of the making of the Loans;
(Q) All Defined Benefit Pension Plans, as defined in the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of the Borrower and each Subsidiary meet, as of the date hereof, the minimum funding standards of Section 302 of ERISA, and no Reportable Event or Prohibited Transaction, as defined in ERISA, has occurred with respect to any such Plan.
Appears in 1 contract
Original. To induce the Lender to enter into this Agreement, each of the Borrower Borrowers jointly and severally represents and warrants to Lender, as of the date hereof and, except as otherwise expressly provided, as of all times (including, without limitation, as of the date each Guarantor individually Advance under any of the Loans is requested and collectively represent made) until this Agreement is terminated in writing, all Obligations hereunder are satisfied and warrant to the Lender no commitments hereunder remain outstanding, as follows:
(aA) The Borrower and the Guarantors are corporations Cavalier Homes is a corporation duly organized, validly existing, existing and in good standing under the Laws of the Commonwealth State of Massachusetts; the Borrower and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A)Delaware; each Subsidiary Consolidated Entity is a corporation duly organized, validly existing, existing and in good standing under the Laws of ---------------- its the state of incorporationin which it is incorporated or formed, all as set forth in Exhibit 5.01(A)J, attached hereto and incorporated herein; Cavalier Homes and each Consolidated Entity has the Borrower, the Guarantors and the Subsidiaries have the --------------- lawful power to own their its properties and to engage in the businesses they conductbusiness it conducts, and each is duly qualified and in good standing as a foreign corporation in the jurisdictions wherein the nature of the business transacted by it or property owned by it makes such qualification necessary; the states in which the Borrower Cavalier Homes and each Guarantor and Subsidiary are Consolidated Entity is qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender in writingG, attached hereto and incorporated herein; the percentage of ownership --------------- of the by Cavalier Homes or another Borrower and each Guarantor as applicable, of the outstanding stock of each Subsidiary Consolidated Entity is as listed in Exhibit 5.01(A)K, attached hereto and incorporated herein; the ---------------- addresses of all places of business and headquarters of the Borrower Cavalier Homes and each Guarantor and Subsidiary Consolidated Entity are as set forth in Exhibit 5.01(A); ---------------- except for Laser Merger SubH, Inc. in connection with attached hereto and incorporated herein, and the Merger, no Borrower, Guarantor or Subsidiary has changed its name, been addresses of all places where the surviving corporation in Collateral is located and a merger, acquired any business, or changed its principal executive office within five (5) years and one (1) month prior to brief description of the date hereof except as nature of the Collateral at each such location are set forth in Exhibit 5.01(A); H;
(B) Neither Cavalier Homes nor any Consolidated Entity has used any corporate or fictitious name other than the name for Cavalier Homes or each Consolidated Entity as is used in this Agreement, which is the same as the name shown, respectively, on Cavalier Homes's and all each Consolidated Entity's certificate or articles of incorporation through the date of filing of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiarylast amendment thereto, except as set forth in Exhibit 5.01(A); ---------------
(b) No Borrower, Guarantor or Subsidiary is directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within the meaning of the Investment Company Act of 1940, as amended;
(c) No Borrower, Guarantor or Subsidiary is in default with respect to any of its existing Indebtedness, and the making and performance of this Agreement, the Notes, and the Collateral Documents will not and did not (immediately or with the passage of time, the giving of notice, or both):II.6.1
Appears in 1 contract
Sources: Revolving and Term Loan Agreement (Cavalier Homes Inc)
Original. To induce the Lender to enter into this Agreement, the Borrower represents and each Guarantor individually and collectively represent and warrant warrants to the Lender as follows:
(aA) The Borrower and the Guarantors are corporations is a corporation duly organized, validly existing, and in good standing under the Laws of the Commonwealth State of MassachusettsDelaware; the Borrower and the Guarantors have has no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A); each Subsidiary is a corporation duly organized, validly existing, and in good standing under the Laws of ---------------- its state of incorporation, all as set forth in Exhibit 5.01(A); the Borrower, the Guarantors Borrower and the Subsidiaries have the --------------- lawful power to own their properties and to engage in the businesses they conduct, and each is duly qualified and in good standing as a foreign corporation in the Massachusetts and such other jurisdictions wherein the nature of the business transacted by it or property owned by it makes such qualification necessary; the states in which the Borrower and each Guarantor and Subsidiary are qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender in writing; the percentage of the Borrower's ownership --------------- of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as listed in Exhibit 5.01(A); the ---------------- identity of each shareholder of the Borrower and the number of shares owned by each is as listed on Exhibit 5.01(A); the addresses of all places of business of the Borrower and each Guarantor and Subsidiary its Subsidiaries are as set forth in Exhibit 5.01(A)) or otherwise disclosed to the Lender in writing; ---------------- except for Laser Merger Sub, Inc. in connection with neither the Merger, no Borrower, Guarantor or Borrower nor any Subsidiary has changed its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five (5) years and one (1) month prior to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------;
(bB) No Borrower, Guarantor or Neither the Borrower nor any Subsidiary is directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within the meaning of the Investment Company Act of 1940, as amended;
(cC) No Borrower, Guarantor or Neither the Borrower nor any Subsidiary is in default with respect to any of its existing Indebtedness beyond any applicable grace or cure period (or, in the case of trade Indebtedness, is not more than ninety (90) days past due), and the making and performance of this Agreement, the Notes, and the Collateral other Loan Documents will not and did not (immediately or with the passage of time, the giving of notice, or both):
(1) Violate the charter or by-laws of the Borrower or any Subsidiary, or violate any Laws or result in a default under any contract, agreement, or instrument to which the Borrower or any Subsidiary is a party or by which the Borrower or any Subsidiary or its property is bound; or
(2) Result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the assets of the Borrower or any Subsidiary except in favor of the Lender;
(D) The Borrower and the Guarantor, to the extent applicable to it or to him, has the power and authority to enter into and perform this Agreement, the Notes, and the other Loan Documents, and to incur the obligations herein and therein provided for, and has taken all actions necessary to authorize the execution, delivery, and performance of this Agreement, the Notes, and the other Loan Documents;
(E) This Agreement, the Notes, and the other Loan Documents are, or when delivered will be, valid, binding, and enforceable in accordance with their respective terms;
(F) Except as disclosed in Exhibit 5.01(F) hereto, there is no pending order, notice, claim, litigation, proceeding, or investigation known to the Borrower against or affecting the Borrower or any Subsidiary, whether or not covered by insurance, that would in the aggregate involve the payment of $50,000.00 or more or would otherwise materially or adversely affect the financial condition or business prospects of the Borrower or any Subsidiary, considered as a whole, if adversely determined;
(G) The Borrower and its Subsidiaries have good and marketable title to all of their assets, none of which is subject to any security interest, encumbrance or lien, or claim of any third Person except for Permitted Liens;
(H) The Financial Statements, including any schedules and notes pertaining thereto, have been prepared in accordance with GAAP, and fully and fairly present the financial condition of the Borrower and its Subsidiaries at the dates thereof and the results of operations for the periods covered thereby, and there have been no material adverse changes in the financial condition or business of the Borrower and its Subsidiaries, considered as a whole, from December 31, 2003 to the date hereof;
(I) As of the date hereof, the Borrower and its Subsidiaries have no material Indebtedness of any nature, including, but without limitation, liabilities for taxes and any interest or penalties relating thereto except to the extent reflected (in a footnote or otherwise) and reserved against in the balance sheet dated December 31, 2003 included in the Financial Statements or as disclosed in, or permitted by, this Agreement; and the Borrower does not know or have reasonable ground to know of any basis for the assertion against it or any Subsidiary of any such claim or litigation based upon such Indebtedness as of the date of the Closing except as disclosed on Exhibit 5.01(F) or otherwise disclosed to the Lender in writing;
(J) Except as otherwise permitted herein, the Borrower has filed all federal, state, and local tax returns and other reports required by any applicable Laws to have been filed prior to the date hereof, has paid or caused to be paid all taxes, assessments, and other governmental charges that are due and payable prior to the date hereof, and has made adequate provision for the payment of such taxes, assessments, or other charges accruing but not yet payable; the Borrower has no knowledge of any deficiency or additional assessment in a materially important amount in connection with any taxes, assessments, or charges not provided for on its books;
(K) Except to the extent that the failure to comply would not materially interfere with the conduct of the business of the Borrower or any Subsidiary, considered as a whole, the Borrower and its Subsidiaries have each complied with all applicable Laws with respect to (1) any restrictions, specifications, or other requirements pertaining to products that it manufactures or sells or to the services it performs; (2) the conduct of its business; and (3) the use, maintenance, and operation of the real and personal properties owned or leased by it in the conduct of its business;
(L) No representation or warranty by or with respect to the Borrower or any Subsidiary contained herein or in any certificate or other document furnished by the Borrower or any Subsidiary pursuant hereto contains any untrue statement of a material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made;
(M) Each consent, approval or authorization of, or filing, registration or qualification with, any Person required to be obtained or effected by the Borrower, any Subsidiary, or the Guarantor in connection with the execution and delivery of this Agreement, the Demand Note, and the Loan Documents or the undertaking or performance of any obligation hereunder or thereunder has been duly obtained or effected;
(N) All existing Indebtedness of the Borrower or any Subsidiary: (1) for money borrowed, or (2) under any security agreement, mortgage or agreement covering the lease by the Borrower or any Subsidiary as lessee of real or personal property is described in Exhibit 5.01(N);
(O) Except as described in Exhibit 5.01(O), attached hereto, or otherwise disclosed to the Lender in writing, (a) neither the Borrower nor any Subsidiary has any material leases, contracts, or commitments of any kind (including, without limitation, employment agreements; collective bargaining agreements; powers of attorney; distribution arrangements; licenses, patents or license agreements; contracts for future purchase or delivery of goods or rendering of services; bonuses, pension, and retirement plans; or accrued vacation pay, insurance, and welfare agreements); (b) to the best of Borrower's knowledge, all parties to all such material leases, contracts, and other commitments to which the Borrower or any Subsidiary is a party have complied in all material respects with the provisions of such leases, contracts, and other commitments; and (c) to the best of Borrower's knowledge, no party is in default under any thereof and no event has occurred which, but for the giving of notice or the passage of time, or both, would constitute a default, which default might have a materially adverse effect upon the business or financial condition of the Borrower or, as applicable, any Subsidiary, considered as a whole;
(P) All registered patents, trademarks and copyrights of the Borrower or any Subsidiary, all pending applications of the Borrower or any Subsidiary for registration of any patents, trademarks or copyrights, and all licenses or agreements in connection with any Intellectual Property of the Borrower or any Subsidiary are described in Exhibit 5.01(P) attached hereto;
(Q) The Borrower has not made any agreement or taken any action which may cause anyone to become entitled to a commission or finder's fee as a result of or in connection with the making of the Loan;
(R) The Borrower's federal tax returns for all years of operation, including the year ended December 31, 2003, have been filed with the Internal Revenue Service and have not been challenged;
(S) Any Employee Pension Benefit Plans, as defined in the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), of the Borrower and each Subsidiary meet, as of the date hereof, the minimum funding standards of 29 U.S.C.A. 1082 (Section 302 of ERISA), and no Reportable Event or Prohibited Transaction, as defined in ERISA, has occurred with respect to any Employee Benefit Plans, as defined in ERISA, of the Borrower or any Subsidiary; and
(T) The liens and security interests created pursuant to Sections 4.02 and 4.03 are in all cases first and prior liens except for Permitted Liens.
Appears in 1 contract
Sources: Loan Agreement (Ipg Photonics Corp)
Original. To induce the Lender to enter into this Agreement, the Borrower represents and each Guarantor individually and collectively represent and warrant warrants to the Lender as follows:
(aA) The Borrower and owns 100% of the Guarantors are corporations outstanding capital stock of the Subsidiary Bank;
(B) Borrower is a corporation duly organized, validly existing, existing and in good standing under the Laws of the Commonwealth state of Massachusettsits formation; the Borrower and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A); each Subsidiary Bank is a corporation duly organized, validly existing, existing and in good standing under the Laws of ---------------- its the state of incorporation, all as set forth in Exhibit 5.01(A)its formation; the Borrower, the Guarantors Borrower and the Subsidiaries Subsidiary Bank have the --------------- lawful power to own their properties and to engage in the businesses business they conduct, and each is are duly qualified and in good standing as a foreign corporation corporations in the jurisdictions wherein the nature of the business transacted by it them or property owned by it makes them make such qualification necessary; the states in which the Borrower and each Guarantor and the Subsidiary Bank are qualified to do business are set forth in Exhibit 5.01(A) or otherwise disclosed to the Lender in writingB; the percentage of ownership --------------- of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as listed in Exhibit 5.01(A); the ---------------- addresses of all Borrower’s and the Subsidiary Bank’s respective principal places of business of the Borrower and each Guarantor and Subsidiary are as set forth in Exhibit 5.01(A)B; ---------------- except for Laser Merger Sub, Inc. in connection with and neither Borrower nor the Merger, no Borrower, Guarantor or Subsidiary Bank has changed its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five three (53) years and one (1) month prior to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------
(b) No Borrower, Guarantor or Subsidiary is directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within the meaning of the Investment Company Act of 1940, as amendedhereof;
(cC) No Borrower, Guarantor or Neither Borrower nor the Subsidiary Bank is in default with respect to any of its existing Indebtedness, or under any material lease, contract or commitment of any kind, and all parties (including Borrower and the Subsidiary Bank) to all such material leases, contracts and other commitments to which Borrower or the Subsidiary Bank is a party are in material compliance with the provisions of such leases, contracts and other commitments;
(D) The making and performance of this Agreement, the NotesNote, and the Collateral Documents will not and did not (immediately immediately, or with the passage of time, or with the giving of notice):
(1) Violate any provision of the articles of incorporation or bylaws of Borrower or the Subsidiary Bank, or both):violate any Laws or result in a default under any contract, agreement, or instrument to which Borrower or the Subsidiary Bank is a party or by which Borrower or the Subsidiary Bank or any of their respective properties are bound; or
(2) Result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the assets of Borrower or the Subsidiary Bank, except in favor of Lender;
(E) Borrower has the power and authority to enter into and perform this Agreement, the Note, and the Collateral Documents, and to incur the Obligations herein and therein provided for, and has taken all corporate action necessary to authorize the execution, delivery, and performance of this Agreement, the Note, and the Collateral Documents;
(F) This Agreement and the Collateral Documents are, and the Note when delivered will be, valid, binding, and enforceable in accordance with their respective terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws, and judicial decisions affecting the rights of creditors generally and by general principles of equity;
(G) There is no pending or, to Borrower’s knowledge, threatened order, notice, claim, litigation, proceeding or investigation against or affecting Borrower or the Subsidiary Bank, whether or not covered by insurance, that would involve the payment of $10,000.00 or more if adversely determined;
(H) Borrower has good and marketable title to all of the Collateral, subject to no security interest, encumbrance or lien, or claim of any third person;
(I) Borrower’s and the Subsidiary Bank’s financial statements (including call reports, in the case of the Subsidiary Bank) furnished to Lender, including any schedules and notes pertaining thereto, have been prepared in accordance with Generally Accepted Accounting Principles consistently applied, and fully and fairly present the financial condition of Borrower at the dates thereof and the results of operations for the periods covered thereby, and there have been no material adverse changes in the consolidated financial condition or business of Borrower from the date of the latest financial statements provided to Lender to the date hereof, or the Subsidiary Bank from its most recently filed call report to the date hereof;
(J) As at the date of this Agreement, neither Borrower nor the Subsidiary Bank has any material Indebtedness of any nature, including, but without limitation, liabilities for taxes and any interest or penalties relating thereto, except to the extent reflected (in a footnote or otherwise) and reserved against in the financial statements of Borrower most recently delivered to Lender or the most recent call report of the Subsidiary Bank, or as disclosed in or permitted by this Agreement, as applicable; Borrower does not know and has no reasonable ground to know of any basis for the assertion against it or the Subsidiary Bank of any material Indebtedness of any nature not fully reflected and reserved against in the above referenced respective financial statements or call reports, as applicable;
(K) Except as otherwise permitted herein, Borrower and the Subsidiary Bank have filed all federal, state and local tax returns and other reports they are required by Law to file prior to the date hereof and which are material to the conduct of their business, have paid or caused to be paid all taxes, assessments and other governmental charges that are due and payable prior to the date hereof, and have made adequate provision for the payment of such taxes, assessments or other charges accruing but not yet payable; Borrower has no knowledge of any deficiency or additional assessment in a materially important amount in connection with any taxes, assessments or charges not provided for on its books or the books of the Subsidiary Bank;
(L) Neither Borrower nor the Subsidiary Bank is in material violation of any applicable Laws;
(M) No representation or warranty by Borrower or the Subsidiary Bank contained herein or in any certificate or other document furnished by Borrower or the Subsidiary Bank pursuant hereto contains any untrue statement of material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made;
(N) Each consent, approval or authorization of, or filing, registration or qualification with, any Person that is required to be obtained or effected by Borrower or the Subsidiary Bank in connection with the execution and delivery of this Agreement, the Note, and the Collateral Documents, or the undertaking or performance of any obligation hereunder or thereunder, has been duly obtained or effected;
(O) The Pledged Stock constitutes all of the issued and outstanding capital stock of the Subsidiary Bank. There are no outstanding warrants, options, rights or other commitments (including, but without limitation, convertible notes or securities) entitling any Person to purchase or otherwise acquire any shares of capital stock of Borrower or the Subsidiary Bank. The Pledged Stock does not constitute “Margin Stock” as defined in Federal Reserve Board Regulation U (12 C.F.R. §§ 221.1 et seq.);
(P) Borrower has not made any agreement or taken any action which may cause anyone to become entitled to a commission or finder’s fee as a result of the making of the Loan;
(Q) Borrower does not maintain any “Defined Benefit Pension Plans”, as defined in ERISA; and
(R) Section 5.02
Appears in 1 contract
Sources: Loan Agreement (Smartfinancial Inc.)
Original. To induce the Lender Bank to enter into this Agreement, the Borrower and each Guarantor individually and collectively Borrowers represent and warrant to the Lender Bank as follows:
(a) The Borrower and the Guarantors Borrowers are corporations duly organized, validly existing, and in good standing under the Laws of the Commonwealth State of Massachusetts; the Borrower South Carolina and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A); each Subsidiary is a corporation duly organized, validly existing, and in good standing under the Laws of ---------------- its state of incorporation, all as set forth in Exhibit 5.01(A); the Borrower, the Guarantors and the Subsidiaries have the --------------- lawful power to own their properties and to engage in the businesses they conduct, and each is are duly qualified and in good standing as a foreign corporation in the jurisdictions wherein the nature of the business transacted by it or property owned by it makes such qualification necessary; the states in which the Borrower and each Guarantor and Subsidiary are qualified to do business are set forth in Exhibit 5.01(A) each jurisdiction where such qualification is necessary. All jurisdictions where MCF or otherwise disclosed to the Lender in writing; the percentage of ownership --------------- any of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as Borrowers are qualified or should be qualified are listed in Exhibit 5.01(A); the ---------------- addresses of all places of business of the Borrower and each Guarantor and Subsidiary are as set forth in Exhibit 5.01(A); ---------------- except for Laser Merger Sub, Inc. in connection with the Merger, no Borrower, Guarantor or Subsidiary has changed its name, been the surviving corporation in a merger, acquired any business, or changed its principal executive office within five (5on Schedule 6-1(a) years and one (1) month prior attached to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------this Agreement.
(b) No Borrower, Guarantor or Subsidiary is directly or indirectly controlled by, or acting on behalf of, any Person which is an "Investment Company", within the meaning None of the Investment Company Act of 1940, as amended;
(c) No Borrower, Guarantor or Subsidiary Borrowers is in default with respect to any of its existing Indebtedness, and the making and or performance of this Agreement, the Notes, and the Collateral Documents Agreement will not and did not (immediately or immediately, with the passage of time, the time or giving of notice, or both):): (i) violate the provisions of the charter or bylaws of any of the Borrowers, or violate any Laws, or result in a default under any contract, agreement, or instrument to which any of the Borrowers are a party or by which any of the Borrowers or any of their property are bound, except in connection with indebtedness satisfied with the proceeds of the Loan; or (ii) result in the creation or imposition of any security interest in, or lien or encumbrance upon, any assets of any of the Borrowers, except as same may be in favor of Bank.
(c) Borrowers have full right, power, and authority to enter into and perform the Loan Documents, and to incur the Obligations herein and therein provided for, and have taken all corporate action and obtained all consents necessary to authorize the execution, delivery, and performance thereof.
(d) This Agreement and the remainder of the Loan Documents, when delivered, will be valid, binding, and enforceable against Borrowers, as applicable, in accordance with their respective terms.
(e) Except as set forth in a written disclosure statement delivered to the Bank within ten (10) business days prior to the execution of this Agreement, no litigation, proceeding, arbitration, or investigation is in process, pending or threatened against any of the Borrowers which, if determined adversely to such Borrowers, would have a material adverse effect on the business, properties, or financial condition of Borrowers.
(f) Borrowers have good and marketable title to all of their assets, subject to no security interest, encumbrance or lien, or any other claim except: (i) such claims specifically disclosed in the application for the Loans, (ii) such claims created by this Agreement in favor of Bank, (iii) liens for real property taxes not yet due and payable and (iv) the Permitted Encumbrances.
(g) Borrowers' financial statements provided to Bank for the fiscal year ended December 31, 1996, and the interim financial statements for the six (6) months ended June 30, 1997, have been prepared in accordance with GAAP and fairly reflect the financial condition of Borrowers and the results of its operations as of the dates and for the periods stated therein. No material adverse changes have since occurred or are threatened.
(h) As of the date hereof, Borrowers, in the aggregate, have no material Indebtedness in excess of $100,000.00 of any nature, including without limitation liabilities for taxes and interest or penalties relating thereto, except: (i) to the extent reflected and reserved against in the most recent financial statements prior to the date hereof; (ii) as created in this Agreement, or (iii) as listed on Schedule 6-1(h) attached hereto and incorporated herein by reference.
(i) Borrowers have filed all federal, state, and local tax returns and reports it is required by all Laws (including the Fair Labor Standards Act) to file prior to the date of this Agreement and have paid or caused to be paid all taxes, interest and penalties due and payable therein. Borrowers have not agreed to an extension, of the period within which the Internal Revenue Service may audit Borrowers tax returns.
(j) All information and representations made and any information or documents submitted in connection with the application for the Loans were true, complete and correct as of the date of such submission and (except for financial statement information provided with reference to a specific date) are true, complete and correct as of the date hereof unless otherwise modified or altered by subsequent written information and representations made to Bank.
(k) No representation or warranty by any of the Borrowers contained herein or in any certificate or other document furnished by or on behalf of Borrowers pursuant hereto contains any untrue statement of material fact or omits to state a material fact necessary to make such representation or warranty not misleading in light of the circumstances under which it was made.
(l) No Reportable Event has occurred during the 5-year period prior to the Closing Date with respect to any Plan, any of the Borrower and each Plan has complied and all material specifications with applicable provisions of ERISA and the Code. The present value of all accrued benefits under each Single Employer Plan maintained by any of the Borrowers (based on those assumptions used to fund the Plans) did not, as of the last annual evaluation date prior to the date of this Agreement, exceed the value of the assets of such Plan allocable to such accrued benefits. The present value (determined using actuarial and other assumptions which are reasonable in respect of the benefits provided and the employees participating) of the liability of any of the Borrowers for post retirement benefits to be provided to their current and former employees under Plans which are welfare benefits (as defined in Section 3(1) of ERISA) equals or exceeds the assets under such Plans allocable to such benefits.
(m) The proceeds of the Loans shall be used by Borrowers in the ordinary course of Borrowers' and for the particular purposes set forth elsewhere in this Loan Agreement.
(n) Except as to the Star Fibers Property and to the extent disclosed to Bank in writing, the Properties do not contain, and have not previously contained, any Materials of Environmental Concern in amounts or concentrations which (i) constitute a violation of, or (ii) could be reasonably given rise to liability under Environmental Laws. Except as to the Star Fibers Property and to the extent disclosed to Bank in writing, the Properties and all operations of the Properties are in compliance, and have in the past two years been in material compliance and specifications with all applicable Environmental Laws, there is no contamination at, under or about the Properties (except as disclosed to Bank in writing), or violation of any Environmental Law with respect to the Properties which could interfere with the continued operation of the Properties or materially impair the fair salable value thereof. None of the Borrowers have not received any notice of violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Properties, nor do any of the Borrowers have knowledge or reason to believe that any such notice will be received or is being threatened except so far as such notice or threat notice or any aggregation thereof, does not involve a matter or matters that is or are reasonably likely to result in the payment by any of the Borrowers of a Material Environmental Amount. To the best knowledge of Borrowers, after reasonable investigation, Materials of Environmental Concern have not been transported or disposed of from the Properties in violation of, or in a manner or to a location which could reasonably give rise to liability under Environmental Laws, nor have any Materials of Environmental Concern have generated, treated, stored or disposed of at, on or under any of the Properties in violation of, or in a manner that could give rise to liability under, any applicable Environmental Laws except insofar as any such violation or liability is referred to above, or any aggregation thereof, is not reasonably likely to result in the payment by Borrowers of a Material Environmental Amount. No judicial proceeding or governmental or administrative action is pending, or, to the knowledge of Borrowers, threatened, under any Environmental Law to which Borrowers are or will be named as a party which respect to the Properties, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other administrative or judicial requirements outstanding under any Environmental Laws with respect to the Properties except insofar as such proceeding, action, decree, order or other requirement or any aggregation thereof is not reasonably likely to result in the payment of Material Environmental Amounts. There has been no release or threat of release of Materials of Environmental Concern at or from the Properties, or arising from or related to the operation of any of the Borrowers in connection with the Properties in violation of or in amounts or in a manner that could give rise to liability under Environmental Laws except insofar as such violation or liability referred to above, or any aggregation thereof, is not reasonably likely to result in the payment of Material Environmental Amounts. The representations contained in this Subsection 6.1(n) are subject to Materials of Environmental Concern or other matters related to Environmental Laws specifically disclosed in writing to Bank, including the environmental condition of the Star Fibers Property.
(o) Borrowers maintain with one or more financially sound and reputable insurance companies, with premiums at all times currently paid, insurance upon fixed assets and inventory, including public liability insurance, fire and all other risks insured against by extended coverage, fidelity bond coverage, business interruption insurance and all other insurance required by law, all in a form and amount required by law and customary to the respective nature of the businesses of Borrowers and Borrowers' properties, except in a case where failure to maintain such insurance will not have or potentially have an adverse effect on the Borrowers or any of Borrowers' properties or assets.
(p) All of the Properties and the use of the Properties shall comply and shall continue to comply in all material respects with all applicable Laws, including zoning resolutions, building codes, Environmental Laws (except as disclosed in writing to Bank), subdivision and other applicable laws, rules and regulations and are covered by existing valid certificates of occupancy and all those certificates and permits required by applicable laws, rules, regulations and ordinances or in connection with the use, occupancy and operation of the Properties. No material portion of any of the Properties has been damaged in any respect as a result of fire, explosion, accident, flood or other casualty. No condemnation or eminent domain proceeding has been commenced or to the knowledge of Borrowers are about to be commenced against any portion of the Properties. No notice of violation of any federal, state or local law or ordinance or order or requirement has been issued with respect to any Properties.
(q) Each of the Borrowers is solvent as defined or used in the Bankruptcy Act of the United States, as amended, and will continue to be solvent as defined or used in the Bankruptcy Act of the United States following the consummation of the transactions contemplated by this Agreement.
(r) Borrowers are in compliance with all applicable Laws, rules, regulations, and orders of all governmental authorities (federal, state, local or foreign, and including, without limitation, Environmental Laws, rules, regulations, and orders) a breach of which would materially and adversely affect any of the Borrowers' business, credit, operations, financial condition, or prospects.
(s) As of the date of this Agreement, the principal place of business and chief executive office of all of the Borrowers is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. Borrowers' additional place of business or places where assets of Borrowers are located are set forth on Schedule 6-1(s). The location of the principal places of business and chief executive offices of the Borrowers and the locations of any Collateral shall not be changed nor shall there be established additional places of business or additional locations where Collateral is stored, kept or processed without Bank's prior written consent, and prior to making any such change or establishing such new location, Borrowers agree to execute any additional financing statements or other documents or notices required by Bank. As of the date of this Agreement, the books and records of Borrowers and all records and accounts are located and hereafter shall continue to be located at the principal place of business and chief executive office of Borrower.
(t) Business conducted by Borrowers has not been conducted by or under any corporate, trade or fictitious name other than those listed on Schedule 6-1(t) attached to this Agreement, and following the date of this Agreement, Borrower will not conduct their business under any trade or fictitious name other than the duly registered names listed on Schedule 6-1 (t) attached to this Agreement, except with the prior consent of Bank.
(u) As of the date of this Agreement, Borrowers have no investments in any Person, and is not engaged in any joint venture or partnership with any other Person.
(v) All representations and warranties contained in the Loan Documents are incorporated herein by reference and constitute a part hereof as fully as if the same were set forth herein.
Appears in 1 contract
Original. To induce the Lender to enter into this Loan Agreement, the Borrower represents and each Guarantor individually and collectively represent and warrant warrants to the Lender as follows:
(aA) The Borrower and the Guarantors are corporations duly organized, validly existing, and in good standing under the Laws of the Commonwealth of Massachusetts; the Borrower and the Guarantors have no Subsidiaries other than the Subsidiaries named in Exhibit 5.01(A); each Subsidiary is a corporation duly organized, validly existing, and in good standing under the Laws of ---------------- its state the State of incorporationDelaware, all as set forth in Exhibit 5.01(A); has the Borrower, the Guarantors and the Subsidiaries have the --------------- lawful power to own their its properties and to engage in the businesses they conduct, business it conducts and each is duly qualified and in good standing as a foreign corporation in the state of West Virginia and all other jurisdictions wherein the nature of the business transacted by it or property owned by it makes such qualification necessary; the states in which the Borrower and each Guarantor and Subsidiary are qualified to do business are set forth in Exhibit 5.01(A) necessary or otherwise disclosed where the failure to the Lender in writing; the percentage of ownership --------------- of the Borrower and each Guarantor of the outstanding stock of each Subsidiary is as listed in Exhibit 5.01(A); the ---------------- addresses of all places of business of the Borrower and each Guarantor and Subsidiary are as set forth in Exhibit 5.01(A); ---------------- except for Laser Merger Sub, Inc. in connection with the Merger, no Borrower, Guarantor or Subsidiary has changed its name, been the surviving corporation in be so qualified would have a merger, acquired any business, or changed its principal executive office within five (5) years and one (1) month prior to the date hereof except as set forth in Exhibit 5.01(A); and all of the authorized, issued, ---------------- and outstanding shares of capital stock of each Subsidiary are owned by the Borrower, a Guarantor or another Subsidiary, except as set forth in Exhibit 5.01(A); ---------------Material Adverse Effect;
(bB) No Borrower, Guarantor or Subsidiary The Borrower is not directly or indirectly controlled by, or acting on behalf of, any Person person which is an "Investment Company", " within the meaning of the Investment Company Act of 1940, as amended;
(cC) No BorrowerOn the Closing date, Guarantor or Subsidiary the Borrower is not in default with respect to any of its existing indebtedness for money borrowed outstanding ("Existing Indebtedness"), and the making execution, delivery and performance of this Agreement, the Notes, Loan Agreement and the Collateral Other Loan Documents in accordance with their respective terms will not and did not (immediately or with the passage of time, the giving of notice, or both):): (i) cause the Borrower to be in default with respect to any of its Existing Indebtedness; (ii) violate the charter, by-laws or other organizational documents of the Borrower or any Subsidiary; (iii) violate any law, rule or regulation applicable to the Borrower or any Subsidiary; (iv) result in a default under any contract, agreement, or instrument to which the Borrower or any Subsidiary is a party or by which the Borrower or any Subsidiary or its property is bound, in each case which default or violation in (i) - (iv) could reasonably be expected to have a Material Adverse Effect; or (v) result in the creation or imposition of any security interest in, or lien or encumbrance upon, any of the assets of the Borrower or any Subsidiary, except in favor of the Lender;
(D) The Borrower has the corporate power and authority to enter into and perform the Loan Documents and to incur the obligations therein provided for and has taken all actions necessary to authorize the execution, delivery and performance of the Loan Documents;
(E) The Loan Documents are, or when delivered will be, valid, binding and enforceable instruments on the part of the Borrower;
(F) On the Closing date there is no pending order, notice, claim, litigation, proceeding, or investigation against or affecting the Borrower or any Subsidiary, whether or not covered by insurance, that if adversely determined, could reasonably be expected to have a Material Adverse Effect;
(G) The Borrower has good and marketable title to all Collateral, none of which is subject to any security interest, encumbrance or lien, or claim of any third person, except for Permitted Liens;
(H) The Financial Statements, including any schedules and notes pertaining thereto, heretofore delivered to the Lender were prepared in accordance with GAAP and fairly presented the consolidated financial condition of the Borrower and Subsidiaries at the date thereof and the consolidated results of operations for the periods covered thereby, and from the latest date of such Financial Statements up to and including the Closing date, the Borrower has suffered no Material Adverse Effect;
(I) The Borrower has not made any agreement or taken any action which may cause anyone to become entitled to a commission or finder's fee as a result of, or in connection with, the making of the Loan;
(J) The Borrower's federal tax identification number is ▇▇-▇▇▇▇▇▇▇. As of the Closing date, the Borrower and each Subsidiary have filed all federal, state and local tax returns and other reports relating to taxes they are required by law to file, and have paid, or made provision for the payment of, all taxes, assessments, fees, levies and other governmental charges upon them, their income and properties as and when such taxes, assessments, fees, levies and charges are due and payable, unless and to the extent any thereof are being actively contested in good faith and by appropriate proceedings and the Borrower and each Subsidiary maintain reasonable reserves on their books therefor;
(K) The Borrower and each Subsidiary are in compliance with the requirements of ERISA and the regulations promulgated thereunder with respect to each Plan as of the Closing date, except where the failure to so comply could not reasonably be expected to have a Material Adverse Effect. No fact or situation that reasonably could be expected to result in a Material Adverse Effect exists as of the Closing date in connection with any Plan. Neither Borrower nor any Subsidiary has participated in or has any withdrawal liability in connection with a Multiemployer Plan; and
(L) The Equipment is not used by the Borrower for purposes of interstate commerce in the ordinary course of the Borrower's business.
Appears in 1 contract
Sources: Loan Agreement (Weirton Steel Corp)